Removing the Barriers to Interracial Relationships—Without Promoting Marriage

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).

Solangel Maldonado

Thank you so much to Linda McClain for organizing this symposium and Jack Balkin for hosting it. I am delighted to engage in this conversation with an extraordinary group of scholars.  This is the first of several posts responding to their comments.

The central argument of the book is that that our romantic preferences, as shaped by the legacy of anti-miscegenation laws, segregation, and discriminatory immigration rules, along with current policies and practices—such as exclusionary zoning, the public school assignment system, and spatial segregation—perpetuate inequality. The book also critiques the law’s failure to prohibit dating apps from facilitating discrimination by their users.

When I discuss the book with different audiences, I am often asked whether individuals may have non-racist reasons for preferring partners of certain races. The answer of course is yes. As Kevin Johnson observes, intimate relationships “implicate very individual issues of beauty, romance, cultural attachments, and comfort” and “complications multiply when there are both racist and non-racist reasons for desiring romance with a person of a particular racial background.”  This may be especially true for racial and ethnic minorities and recent immigrants who may seek a romantic partner who understands their culture, food, religion, and language, especially if they wish to raise children. Racial and ethnic minorities who have been exposed to discrimination or fetishization, especially, may prefer intimate partners who can relate to their experience as a racial or ethnic minority in a segregated society. For example, a Latino who expresses a preference for a Latino partner who shares their language and culture, does not reinforce racial hierarchy. However, when a Latino prefers White partners or light-skinned Latinos but rejects their darked-complexioned counterparts, their preferences are likely rooted in anti-Black bias and reinforce White supremacy. Similarly, an Italian American man who wants a partner of Italian heritage because he is seeking a common culture, language, and religion does not reinforce racial hierarchy even though his preferred partner is likely to be White.  In the aggregate, our racial preferences reinforce a racial hierarchy but our individual preferences are multi-faceted.  As such, I propose that the law remove the barriers to interracial intimacy that it created but oppose any legal efforts to encourage interracial intimacy.

As a scholar opposed to the law’s privileging of marriage, I was a bit uncomfortable writing a book that focuses on marriage and marriage-like relationships, especially as more individuals are choosing to be single. However, that focus seemed inevitable in a book about romantic relationships until Naomi Cahn pointed out that my argument that “racial preferences ‘reduce some individuals’ opportunities to find intimate partners,’” is “in conversation with the developing field of scholarship . . . that looks at race, marriage, and those who live without partners, often by choice.”  I wish I had made this connection before I published the book. As Kris Marsh, the author of The Love Jone Cohort: Single and Living Alone in the Black Middle Class, argues, the choice to live without a committed romantic partner is influenced by many factors but “racism and gendered racism constrain personal choices and also need to be taken into consideration when discussing Black singlehood.”

As I argue in the book, “for many individuals, marriage provides myriad psychological, economic, and societal benefits” and thus the law should be concerned about racial preferences because they “may limit a person’s opportunity to secure these benefits for themselves and their children.” (p. 112).  Racial preferences limit Black women’s access to these benefits.  Since the law played a significant role in creating our racial preferences, I propose that it remove the barriers to interracial intimacy that it created but understand Dorothy Roberts’ skepticism about the “efficacy of a strategy for promoting racial equality that focuses on dating preferences.” Roberts worries that “[r]ecommending the expansion of black women’s dating options . . . seems to sidestep the real issues—the long history of vilifying stereotypes of black women’s sexuality and maternity reinforced by state policies, mass arrest and incarceration of young black men, racist employment discrimination, and under resourcing schools in black neighborhoods.” I agree that my proposals—prohibiting dating apps from accommodating or facilitating discrimination by users and removing the structural barriers to interracial intimacy—will not address the mass arrests of Black men, racial discrimination in employment, or denial of resources to Black neighborhoods. However, my proposals to reduce residential, educational, and spatial segregation might help break down stereotypes about different groups, including Black women, and allow Black and Brown children to attend better-resourced schools.

Roberts’ observation is a welcome reminder to clarify that my proposals, if adopted, would likely benefit college-educated Black women who, but for racial preferences, would have greater access to marriage and its economic and societal benefits (for themselves and their children).  But as I explain in other work, access to a larger dating pool will not address the subordination of low-income Black women. As I acknowledge in the book, “interracial friendships and intimate relationships between people with vastly different levels of education and socioeconomic status are unlikely to develop even if they share the same spaces.” (p. 144). The majority of African-Americans, however, are not poor and Black women are earning college and graduate degrees at high rates. They are purchasing homes in well-resourced neighborhoods, accumulating wealth, and raising children without a co-parent.  They don’t need marriage to live fulfilling lives.  But as Kris Marsh argues, Black women’s decisions not to pursue marriage or marriage-like commitments are made within the constraints of gendered racism that limit their ability to find similarly educated and economically stable partners. These constraints may deprive their children of the advantages that children with two college-educated and economically stable parents enjoy since single parents, regardless of their level of education and income, rarely have the same resources, financial or otherwise (time, for example) to invest in their children as married parents.

I am troubled by a legal system that advantages the children of married couples and especially the children of married couples in which one spouse is White. As Aníbal Rosario Lebrón aptly observes, “marriage only reifies Whiteness” and “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.” Thus, my goal is to demonstrate how racial preferences exacerbate the inequality that marriage perpetuates while rejecting the notion that “romantic partnerships should be used as a mechanism for racial and economic equality.” (p. 10).  Consequently, I oppose using the law to promote marriage, including interracial marriage, and focus instead “on removing the barriers that the law created.” (p. 144).  

Although this includes prohibiting dating apps from facilitating discrimination by their users, I don’t believe that the law can or “should prohibit individual users from expressing or acting upon their racial preferences.” (p. 132).  Lebrón suggests that my arguments “would be more effective if the harmful distinction between the private and the public were to be erased.” While I agree that the law should completely eliminate the distinction between the private and public in the housing and employment contexts, I am hesitant to invite the law’s continued interference in intimate relationships. Any legal restrictions on users’ abilities to express their racial preferences would likely meet resistance but just as important, the law’s influence on intimate relationships has historically done more harm than good.

I will address the comments raised by the other participants in future posts.

Solangel Maldonado is the Eleanor Bontecou Professor of Law at Seton Hall University School of Law. She may be reached at Solangel.Maldonado@shu.edu.