Desire in the Absence of Discrimination

Guest Blogger

For the Balkinization Symposium on Solangel Maldonado, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024).

Aníbal Rosario Lebrón

“It begins with absence and desire.

It begins with blood and fear.

It begins with a discovery of witches.”

Deborah Harkness, A Discovery of Witches

In Deborah Harkness’ bestselling series, All Souls Trilogy, her protagonist – historian and reluctant witch – Diana Bishop, finds herself in an outlawed relationship with a vampire. A species’ covenant in the Middle Ages prohibited daemons, witches, and vampires from interbreeding. This covenant brought prejudices, fear, and death; creating a hierarchy that defined the inequalities in their society.

Diana’s desire for a vampire pushes her to defy the law and takes her on a journey through time to find a way to vindicate her relationship. In her travels, just like scientists recently discovering that some human immunity advantage is due to Neanderthal and Homo Sapiens interbreeding, Diana uncovers that powers have been dwindling across all magical communities because of the interbreeding prohibition and that the key to magic survival was miscegenation, especially daemon DNA which gave rise to weavers, powerful witches like herself. Empowered with this knowledge, Diana gains all species’ acquiescence to rescind the covenant and puts in power the long-marginalized daemons, eradicating their traditional hierarchies.

Much like Diana, in The Architecture of Desire, Professor Solangel Maldonado takes us on a journey to understand how the United States legal system – designed to foster and maintain White supremacy – laid the foundation for a caste system in dating and marriage. Contrary to Diana’s story, Maldonado’s account does not stop at the covenant’s dismantling. Instead, she shows us that racial hierarchies are hard to break down even when the law and society commit to racial equity and that marriage still plays an important role in safeguarding White supremacy.

First, Maldonado discusses how, in the United States, even after attempting to dismantle the covenant with the abolition of anti-miscegenation statutes, the eradication of legally enforced segregation, the rejection of race-based immigration, and the enactment of anti-discrimination laws such as the Civil Rights Acts, the dating and marriage caste system continues today, with most groups preferring a White person as a romantic partner. After presenting how racial hierarchies have not been shifted, she proceeds to show us that these racial preferences have real effects in terms of equity in society as marriage continues to bestow legal benefits and produce education and economic advantages to a continually shrinking elite (mostly White) and only to minorities that assimilate by interracial marriage.

Maldonado’s thesis is even more striking when we juxtapose her insightful exploration of marriage and dating in the United States with Harkness’ fictionalized racial utopia. The abolition of the covenant in Bishop’s story, contrary to the reality that Maldonado skillfully summarizes in her book, forecasts a new era in which interbreeding is not frowned upon but encouraged to preserve the health of all magical creatures. The failure of that utopia in our society perhaps lies in a concept that Maldonado repeats throughout her book, assimilation.

As this concept and its cousin honorary White[1] popped up throughout the book, I became more apprehensive as to whether achieving racial equity through marriage might be possible. The way we eradicated our covenant, contrary to Harkness’ story, was not to value miscegenation and the marginalized groups but to make more accessible Whiteness (i.e., the all-encompassing set of privileges, especially the economic ones associated with being White and not the racial tag). The reason to no longer separate the races was not a need for them to mix for their survival but a less powerful convergence of interests. That is why, perhaps, as Maldonado discusses, even after dismantling segregation and anti-miscegenation, more subtle ways of keeping people physically, psychologically, and romantically separated evolved.

Two main mechanisms in which this separation has been achieved emerge from Maldonado’s analysis. The first is single-family zoning. Through this apparent race-neutral mechanism, people of color have been precluded from coming into contact with their White counterparts creating a funnel that further prevents all races from meeting in schools, universities, jobs, and social spaces. Not being able to afford this type of housing because of the long history of capital extraction that people of color suffered and from which Whites benefited further enthrones Whiteness.

For me, it also highlights the role marriage has in perpetuating inequality. First, to participate in capital production and its intergenerational transfer, marriage only serves if one marries up by marrying White. And even, as Maldonado discusses, in the few exceptions in which the non-White partner is the one with more capital marrying White still means marrying up because it gives access to the social benefits of Whiteness or honorary White. Thus, marriage only reifies Whiteness instead of dismantling it, making assimilation the goal of racial equity. Yet, racial equity cannot come about without Whiteness being devoid of any meaning.

Second, as I have argued, family normativity and its dyad with marriage is an exclusionary tool that leaves many “non-traditional families” without rights and opportunities and that also forecloses social mobility for a growing sector of society that is embracing singlehood. As Maldonado discusses, that seems to be an important consideration for Black heterosexual women who are at the bottom of the dating caste and seem to prefer also to be in relationships with Black men, which often means embracing singlehood.

The second separation mechanism that emerges from Maldonado’s analysis uses the distinction between the public and private to reinforce inequalities by either not regulating discrimination in what is arbitrarily defined as a private space or making exceptions to discriminate in such spaces. This long-used strategy in the law is central to Maldonado’s critique in her book. She argues that racial inequality is fostered through racial filters in dating platforms, which have evaded the law’s reach. The ease of excluding people through these filters exacerbates the separation between racial groups to the point of rendering some of them invisible. This absence of desire created, sanctioned, and fostered by the law, thus, precludes racial minorities from assimilating (i.e., marrying interracially).

Maldonado suggests that we must work to eradicate discrimination in these private spaces of online dating and erase the racial separation and segregation still in existence in the United States so that people from different races meet and engage in interracial marriage as a tool of social mobility that slowly erodes racial inequities. Although she acknowledges that using marriage in this way is problematic, in part, because her research shows that marriage has been used as a tool for preserving White supremacy, she argues that it is necessary to transform the institution of marriage by increasing the number of interracial couples, especially considering the pervasiveness of all other forms in which White supremacy is imposed in society today.  Essentially, this would be a path of least resistance to racial equity for her.

She proposes prohibiting dating platforms from providing users with race filters as the harms associated with this practice are parallel to the ones caused by allowing property owners to advertise their racial preferences or using third parties to sieve applicants based on race, which is outlawed. Or as others suggest, treating dating platforms as public accommodation spaces as they serve the same purpose as their nonvirtual counterparts (e.g., bars) in which race discrimination is prohibited. Maldonado understands that erasing this separation and segregation in the dating space is insufficient if we still allow it in other spaces. Thus, she advocates for other reforms such as eliminating the Mrs. Murphy exception which exempts live-in landlords with four or fewer units from the anti-discrimination mandates in the Fair Housing Act.

She is arguing fundamentally for prohibiting race discrimination in private spaces.  While reading Maldonado’s compelling arguments, I wondered whether it would be more effective if the harmful distinction between the private and the public were to be erased.[2] This strategy seems more imperative after Maldonado’s discussion on the constitutional challenges and limits to her proposal based on association and speech rights and the recent Supreme Court trend of placing liberty interests above equality. Perhaps, instead of a vertical application of the Constitution, we should push for a horizontal one, in which the state action requirement is eliminated, and rights are enforceable between private citizens.

This approach, for me, would better propel the other excellent proposals that Maldonado proffers. She advocates for abolishing the current K-12 assignment system, making college campuses more racially diverse, and transforming public transportation so people of all races can share the same public spaces. These ideas would ensure that people of all races are no longer separated and find opportunities to date interracially. But, for interracial dating to be successful, discrimination must not be fostered subtly by the law as it occurs today, and that might require extending the protections of the constitution to private individuals’ interactions. In addition, in what I consider the most important of Maldonado’s suggestions, it is crucial to change people’s perspectives about race and the United States’ racial discrimination history through education so that we can allow our desires not to be controlled by the social constructs of race.

As A Discovery of Witches’ preface states, it begins with absence and desire. To build a more equitable society for the benefit of all, the Law must ensure the absence of discrimination to allow desire to flow in all directions without distinctions of race. Professor Solangel Maldonado’s sharp and thorough examination of the law’s role in forging desire through marriage and its contribution to perpetuating inequality is a must-read for everyone in society.  Her ideas invite us to think about urgent legal reforms. But more importantly, to self-reflect about our own intimate relationships and their role in the larger scheme of building an equitable world. 

Aníbal Rosario Lebrón is Associate Professor of Law at Rutgers Law School. You can reach him by e-mail at anibal.rosario.lebron@law.rutgers.edu