Interracial Intimacy: The Past as Prologue, or Something Else?

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).

Rachel F. Moran

In “The Architecture of Desire,” Professor Solangel Maldonado offers a fresh take on the dynamics of interracial marriage and dating.  I assume that I was asked to join the conversation about Professor Maldonado’s book because I wrote “Interracial Intimacy: The Regulation of Race and Romance,” published by the University of Chicago Press in 2001.  Several decades have passed since my book came out, so I could not help but read Professor Maldonado’s work with an eye to what had changed in the intervening years.

In some important respects, the short answer turns out to be very little.  Take, for example, rates of interracial marriage.  When I wrote about these patterns over twenty years ago, African Americans had the lowest rate of out-marriage, while rates for Asian Americans and Latinos were substantially higher.  Based on Professor Mary Waters’ testimony before Congress in 1997, I reported that “over 93 percent of whites and blacks choose same-race partners as do 70 percent of Asians and Latinos and 33 percent of Native Americans.”  Professor Maldonado’s book tells us that “only 18 percent of African Americans marry out,” while “more than one-third of U.S.-born Asian Americans and Latinos as well as a majority of American Indians . . . marry out.”  This suggests that in the last 27 years, the out-marriage rate for African Americans on average has risen by less than one percent each year.  Meanwhile, the rates for Asian Americans and Latinos have remained about the same.  Some of the reported growth may be due to differences in how the relevant populations are counted.  Professor Maldonado, for instance, looks at only U.S.-born Asian Americans and Latinos, a subset of these populations with higher rates of intermarriage. 

Even assuming that all the growth in intermarriage is real, it is still quite modest.  That is especially true in light of the demographic change that occurred in the United States from 2000 to 2020.  According to research done by William H. Frey for the Brookings Institute, during that time, whites declined from approximately 70 percent to just under 60 percent of the population.  Meanwhile, the Latino population grew from 12.5 percent to 18.7 percent, and the Asian American population increased from 3.6 percent to 5.9 percent.  The black population was relatively stable, remaining at about 12.1 percent.  Based solely on these population shifts, one might have anticipated some increase in intermarriage, and as Professor Maldonado herself observes, “if couples across the United States were randomly matched without regard to race, 44 percent of all marriages would be interracial.”  In fact, only 19 percent are.

To explain the persistence of depressed rates of intermarriage, Professor Maldonado looks at both informal pressures and structural barriers.  She reports that attitudes about interracial marriage have altered dramatically.  By 2021, 94 percent of Americans approved of marriages between whites and African Americans, compared to just 48 percent in 1992.  Clearly, attitudes have changed more quickly than marriage patterns, a gap that Professor Maldonado attributes in part to the ongoing influence of family, friends, and colleagues as well as implicit biases.  According to a study at a California public university done in 2008-09, 35 percent of non-black students expressed fears that they would confront societal and familial disapproval if they married a black spouse.  Moreover, the study found that stereotypes about prospective partners of another race persist.  For instance, 50 percent of Latino men and 29 percent of white men cited “aggressive personality” as a reason for rejecting black women as romantic interests.

Professor Maldonado also considers structural barriers that depress rates of interracial marriage and dating.  In 1967, the U.S. Supreme Court struck down anti-miscegenation laws in Loving v. Virginia, lifting the most salient legal barrier to interracial marriage.  Even so, legacies of discrimination continue to limit prospects for intermarriage.  The most important of these relate to ongoing segregation in neighborhoods, schools, and workplaces.  As Professor Maldonado points out,

In our segregated society, many Americans do not have the opportunity to interact with people of different backgrounds.  Most Whites live in neighborhoods with few African Americans or Latinos even though these groups comprise one-third of the U.S. population. African American and Latino children often attend K-12 schools with few White students, and, with the exception of historically Black colleges and universities (HBCUs), the majority of selective institutions are predominantly White.  Workplaces are more racially diverse, but Whites and racial minorities often hold vastly different jobs, with the latter disproportionately represented in positions wrongly labelled as ‘low-skilled, unskilled labor.’

Patterns of segregation limit proximity to individuals of another race, who in turn might become a romantic partner or spouse. In fact, Professor Maldonado notes, “the majority of White individuals do not have any African American friends, and neither do most Latinos.” Compounding this lack of proximity, segregation limits educational and economic opportunities in ways that perpetuate inequality along racial lines.  To the extent that marriage is typically endogamous not just with respect to race but also with respect to socioeconomic status, these disparities in education and earnings further lock in the prevalence of same-race marriage.

One innovation in finding romantic partners that was in its infancy when I wrote my book is online dating.  Match.com launched its pioneering dating site in 1995, and today, there are multiple sites used by about three in ten American adults, according to a 2019 study by the Pew Research Center. According to the findings, that rate is even higher for people under 30; for this cohort, 53 percent report that they have used an online dating site.  Moreover, about one in ten adults living in a committed relationship found a partner through these sites.   

The rise of online dating might suggest that cyberspace can transcend persistent  segregation that limits physical proximity to partners of another race.  Professor Maldonado gives the lie to any such Panglossian account of the miracle of technology when it comes to romantic choice.  When people log on to dating sites, they bring with them biases and assumptions forged in everyday life.  Interracial dating sites, which after all are businesses, have readily discerned that race remains an important factor in identifying a partner.  In fact, as Professor Maldonado notes,

Although several platforms have eliminated their race filters in recent years, more than 75 percent of the top twenty-five grossing dating apps requested users’ race at one point, and more than two-thirds allowed users to filter daters by race and ethnic background.  At least one site allowed users to filter by how light or dark a person’s skin tone was.

In fact, when Professor Maldonado and her research assistants created fake profiles on six popular dating sites, they were prompted to express racial preferences in ways that would be impermissible in other settings.

Another area of considerable change since I wrote my book relates to same-sex relationships.  In 1986, in Bowers v. Hardwick, the U.S. Supreme Court ruled that sodomy could be a crime, and it was not until 2003, two years after my book came out, that the Justices reversed themselves in Lawrence v. Texas and held that consensual same-sex relationships should not be criminalized. It was not until 2015 that the Court recognized a right to same-sex marriage in Obergefell v. Hodges.  Today, same-sex unions represent a tiny share of marriages in the United States.  According to the Census Bureau, in 2021 just 1.2 percent of married couples were same-sex.  Although the Supreme Court’s high-profile decisions all involved gay men, most same-sex marriages are between two women. 

Professor Maldonado’s book explores interracial intimacy among same-sex couples, and she finds that they are more likely to cohabit and marry across the color line than straight couples are.  Gays and lesbians rely more on online dating to meet a partner than heterosexuals do, and online preferences reveal the persistence of racial considerations among gay men.  They continue to express strong preferences for white partners, while lesbians are open to romantic partners of all races.  Even so, gay men are more likely than heterosexual men to cohabit with a partner of a different race, perhaps because of a limited pool of white prospects. Same-sex marriages are substantially more likely to be interracial: Thirty-one percent of these couples are intermarried compared to 19 percent of heterosexual spouses.  Perhaps this reflects both the openness of lesbian women to interracial relationships, and the willingness of gay white males to find a mate of another race when the number of white partners is limited.  

Whatever the reason, opening the institution of marriage to a previously excluded group has boosted the frequency of interracial marriage.  This raises the intriguing possibility that softening the boundaries of marriage might further increase these rates.  While Professor Maldonado emphasizes racial hierarchy as a barrier to intermarriage, it seems possible that hierarchies of intimacy pose obstacles of their own.   At present, the unique status of marriage sets this institution apart from other forms of attachment, including long-term cohabitation.  At the same time, romantic ties are distinguished from other sources of sustenance and support like lasting friendships.  The significance of marriage has made it a particularly high-stakes decision.  Young people are delaying marriage, and less affluent Americans are foregoing it altogether.  Just as Blacks have the lowest rate of intermarriage among racial and ethnic groups, they also have the highest rate of being unpartnered altogether.  The high stakes associated with marriage may lead individuals to become risk averse, either when choosing to marry or when pursuing marriage across the color line.

Professor Maldonado offers suggestions for improving the odds that individuals will find and marry a spouse of a different race.  Many of these reform proposals focus on race-based concerns, rather than on the stratification of marriage and other personal relationships.  She argues that online dating sites should be treated like other public accommodations, so that they cannot facilitate discrimination by creating filters to screen out prospective partners based on race.  Professor Maldonado makes clear that users of these sites could still express racial preferences and act on them in choosing whom to date, but the sites themselves could not prompt this conduct by making it easy to profile and exclude romantic prospects on racial grounds.  Professor Maldonado also describes steps to combat segregation in housing and education, which in turn would make it more likely that people could interact with those of other races throughout their lives.  She explicitly recognizes the limits of these approaches, but she also believes that any reforms must be circumscribed due to our nation’s vigorous protection of liberty interests, including the freedom to marry.

Based on these proposed interventions, any changes in interracial marriage rates are likely to remain incremental—as has been true in the decades since I wrote my book. That has left me wondering whether there is any prospect of disruptive change in the coming decades that could alter the calculus for interracial intimacy.  I confess that I have been a bit hesitant to elaborate on these thoughts.  Law is deeply rooted in the past, and lawyers generally abjure anything that looks too speculative.  The simple truth is that law works best under conditions that are relatively constant and predictable.  Under these circumstances, precedent can serve as a useful anchor to promote stability.  When there are profound, rapid transformations, however, the wisdom of the ages may become the short-sightedness of the past.  Law can become unmoored and seemingly irrelevant if it fails to meet the moment. 

Despite my reservations, I am going to indulge in some guesswork here.  I have been struck by the dramatic disruptions that climate change is bringing to the United States and the world.  There are several reasons to think that these shifts could affect patterns of intimacy, including those across the color line.  For one thing, ecological change has already begun to lead to drought, famine, and the collapse of agricultural economies.  Those changes in turn have produced political instability and led to diaspora and displacement.  These pressures in turn are likely to alter the demographic profile of nations that receive migrants, increasing the odds that intermarriage eventually will increase. At the same time, high levels of immigration could produce a backlash marked by nationalism and xenophobia.  Those responses in turn could reduce the odds of intermarriage.

In the American legal system, these pressures on intimacy so far have manifested themselves primarily in disputes over how marital and family relationships affect the application of immigration laws.  In June 2024, the U.S. Supreme Court handed down its decision in Department of State v. Munoz.  There, the American consulate in San Salvador rejected a petition for a visa to enter the United States. Apart from citing a federal statutory provision, consular officials offered no specific grounds for the denial. Normally, no reasons need be given when a petition for a visa is rejected, but this applicant’s wife was a U.S. citizen.   She alleged that she was affected by the rejection because she had to live apart from her husband and raise her children alone.  She claimed that this burden on her right to marry at a minimum required the consulate to provide reasons for the denial.  In an opinion by Justice Amy Coney Barrett, the Court rejected this claim.  After questioning how the plaintiff had defined the relevant liberty interest, the majority concluded that, in any event, there was no right “deeply rooted in this Nation’s history and tradition.”  Congress had long regulated the entry of non-citizen spouses into the United States, so any entitlements were a matter of “legislative grace” rather than judicial fiat. 

It's interesting to note that this case involved a couple with two Latino partners.  So, this was not really a situation directly implicating interracial intimacy as defined in Professor Maldonado’s book.  However, the decision did deal with the marital rights of binational couples, and the Court found that these rights were extremely limited, if they counted at all.  In dissent, Justice Sonia Sotomayor made clear that the majority’s opinion undercut marital autonomy rights set forth in, among other cases, Loving v. Virginia and Obergell v. Hodges.  These decisions recognized a right to marry a partner of a different race and a partner of the same sex, respectively.  Justice Sotomayor also linked Munoz to the Court’s decision striking down reproductive freedom in Dobbs v. Jackson Women’s Health Organization, arguing that the majority once again had manipulated the meaning of a liberty interest to weaken protections for a woman’s autonomy.  Justice Sotomayor’s reasoning suggests that the need to regulate growing pressures at the border could erode marital and reproductive freedoms for everyone.

Climate change could alter not just marital rights but the human capacity for intimacy.  Global pandemics, extreme weather, food and water shortages—all could affect life expectancy and quality of life.  A growing sense of vulnerability might strengthen interpersonal relationships if individuals cling more closely to friends and loved ones as a buffer against adversity.  What is unclear is whether those stronger ties would develop across racial or ethnic lines.  During the COVID-19 school shutdowns, some affluent families created learning pods, but they reflected the segregated nature of neighborhoods and friendships.  The pods did not interrupt these patterns but instead reinforced them as families retreated into networks of privilege identifiable by race and socioeconomic status.

Climate change could lead people to grow more confrontational.  Recent studies on the impact of rising temperatures have found a correlative increase in civil war, interpersonal conflict, and perhaps even self-harm.  Growing conflict could weaken the capacity for intimacy, including interracial relationships.  So far, global maps show that in contrast to Africa, the Middle East, and Asia, the United States has been remarkably free of civil conflict.  It is an open question whether that insulation from destabilizing aggression will persist.  If it does, then perhaps incrementalism will be the road map to the future of interracial intimacy.  If not, who knows?

Rachel F. Moran is Professor of Law at Texas A&M University School of Law.  She can be reached at moran@law.tamu.edu.