Balkinization: Loving Day, 2020: Revisiting Palmore v. Sidoti as a Companion Case to Loving v. Virginia

Loving Day, 2020: Revisiting Palmore v. Sidoti as a Companion Case to Loving v. Virginia

Linda McClain

June 12^th is Loving Day, a holiday celebrating the landmark case Loving v. Virginia (1967), in which the U.S. Supreme Court struck down Virginia’s Racial Integrity Act— and the laws of 15 other states that still prohibited marriage between white people and people of other “races” — as unconstitutional and “obviously an endorsement of the doctrine of White Supremacy.” Officially recognized in several states (including Virginia) and some cities, the holiday “Loving Day” grew out of a graduate school project undertaken by designer Ken Tanabe, whose own interracial heritage spurred his interest in the case. This year, Tanabe has asked that people continue the tradition “of observing Loving Day in meaningful and personal ways” but also “by joining us in coming together in support of black lives and justice." The Loving Day website, with the message, “Black Lives Matter,” makes a similar request and lists ways to do so.

Peter Wallenstein, author of two books about the Lovings and their significant case, has commented that the murder of George Floyd “epitomizes how half a century after the Loving decision and other civil rights milestones of the 60's ‘the toxic residue of Jim Crow across the centuries continues to make its way down the streets and into people's lives.’" Wallenstein adds: "It really is quite remarkable how much can change and it’s just as remarkable how little does."

Wallenstein’s observation about how much and how little changes comes to mind in considering another significant Supreme Court case about impermissible race discrimination and family life, Palmore v. Sidoti (1984). Decided seventeen years after Loving, it shows the disturbing persistence of racial prejudice in the form of hostility toward interracial marriage. Palmore is a significant companion case to Loving in taking up some of Loving’s unfinished business. But unlike Mildred Jeter and Richard Loving, whose love story and legal victory in the aptly named case have become iconic cultural references and given birth to a holiday, Palmore did not produce a similar happy ending for Linda Sidoti Palmore and her family.

I recently revisited Palmore to write a chapter about it for a forthcoming book, Painting Constitutional Law (edited by Howard Wasserman and M.C. Mirow) about important Supreme Court cases that originated in Florida. The book’s inspiration was a series of paintings about such cases, May It Please the Court, by the Florida artist Xavier Cortada.

In Cortada’s painting about Palmore v. Sidoti, a cloud of disembodied and disapproving eyes hovers behind three figures forming a family tableau at the center: Linda Sidoti Palmore, a white mother, holds onto her young daughter, Melanie, who in turn holds the hand of Charles Palmore, an African American man, Linda’s new husband. As Cortada writes of his painting, those eyes “in a sea of Caucasian skin” —and the “profound racism” they reflected—tried to tip the balance in a custody battle. Melanie’s white father, Anthony Sidoti, disapproved of her mother’s interracial relationship and persuaded a trial court to transfer custody to him because of the “social stigmatization” Melanie would surely suffer, despite “strides” in race relations. The Supreme Court reversed, famously declaring that “private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” This often-quoted language has had a long afterlife in many constitutional battles against discrimination, including for LGBTQ rights.

Cortada celebrates Linda Sidoti Palmore’s seeming legal triumph by showing the interracial family striding forward despite the disapproving eyes. The reported case, however, does not tell the full story. Despite her legal victory, as many family law and constitutional law professors know, she never regained custody of her child. And, as I learned in reading newspaper accounts about the case, her marriage to Charles Palmore was troubled and brief and ended while her efforts to regain custody continued. The judgmental eyes that Cortada depicts achieved the initial disruption of Linda’s family tableau he depicts. The blind eye the Supreme Court turned to her requests for the return of her daughter while she pursued her constitutional claim continued that disruption, and state court judges then aided her ex-husband’s legal maneuverings to keep Melanie. Despite the Court’s inspiring rhetoric about not giving effect to “private biases,” such biases did have a disruptive and disturbing “effect.” In contrast with Cortada’s painting, the more typical family tableau was one of absence – with Melanie present only as a photograph at which Linda, seated next to Charles, gazes.

Understandably, Linda Sidoti Palmore believed she had a right to marry without punishment. However, Melissa Murray has written that, in the years after Loving and before Palmore, a number of white women lost custody of their children after they entered into an interracial romance, although courts often tried to mask the role played by the racial element. The trial court judge in Palmore, Judge Buck, made no such effort, but made his race-conscious reasoning clear. Following that ruling, Linda observed in Florida Today: ‘The first time I was before Judge Buck he thought I was a terrific lady. Then his whole opinion changed and I was not good. It was because I loved a black man. I hadn’t changed. Neither had my love for my daughter.’

The Palmore marriage was legal in Florida —following Loving’s rejection of antimiscegenation laws; that did not mean it was socially acceptable. In 1982, Ernest Porterfield, author of one of the first ethnographic studies of black-white marriages, observed that ‘no other [intermarriage] mixture touches off such widespread condemnation as black-white race mixing.’ News coverage of the time reveals that, even as the number of such ‘mixed’ couples was on the rise, problems of prejudice and lack of acceptance – particularly by the white community – had not decreased.

Since I had been researching the role of the rhetoric of bigotry in controversies over Brown v. Board of Education and Loving, I was interested to see whether and how such rhetoric featured in the Palmore litigation. As I elaborate in the chapter, the ACLU reminded the Supreme Court of its numerous civil rights-era cases in which it had ‘refused to hold constitutional values hostage to racial bigotry in any form’ or be ‘pressured into race conscious decisions by the reprehensible actions of a small minority of bigots.’ A brief filed by Leigh Earls, a white child raised in an interracial home, spoke of the positive effects from her experience being raised by her white mother and black stepfather. She expressed her concern that if courts were allowed to ‘to presume that an interracial home is detrimental to the interests of a white child, she could [have been] taken from her home.’ Earls’ brief, joined by several civil rights and children rights organizations, discussed family law cases rejecting Judge Buck’s reliance on the assumed prejudice and stigma Melanie would encounter: ‘“a court must never yield to prejudice because it cannot prevent prejudice.”’ Earls cited a California case from 1968 (DeLander v. DeLander) for the proposition that ‘“[w]hile the Constitution cannot prevent bigotry, it can prevent an individual from involving the State, through its Courts, in such bigotry.’” The Supreme Court’s eventual opinion in Palmore would mirror this declaration closely, although substituting ‘private bias’ and ‘prejudice’ for ‘bigotry.’

To return to 2020 and Loving Day: Public opinion is more favorable toward interracial marriage than it was in the 1980s, when the custody dispute over Melanie Sidoti arose. The gaze cast on such families is more approving, although not uniformly so. Also, some gazes may fail to see interracial or multiracial families as families, making them invisible, not just too visible, as Dean Onwuachi-Willig and Jacob Willig-Onwuachi have observed. Another encouraging trend is that the share of intermarried couples has grown steadily since 1980, when just three percent of married people had a spouse of a different race or ethnicity. A survey released in 2017, on the 50^th anniversary of Loving, found that one in six new marriages in the United States crosses racial or ethnic lines, although the white-black line is crossed less frequently than other lines, such as white-Asian, white-Latinx, or other combinations.

In a book published on Loving’s 50^th anniversary, Loving: Interracial Intimacy in America and the Threat to White Supremacy, Sheryll Cashin concludes with a call to be raciall and culturally “dexterous.” Cashin’s message seems apt today. “We are in a state of toxic polarity now,” Cashin wrote, but she looked forward to a future “tipping point at which a critical mass, though not a majority, of white people accepts that structural change and sharing power is what rejecting supremacy, with its embedded notions of white cultural and political dominance, actually means and requires.” (Here Cashin invoked Dr. Martin Luther King, Jr., who, in 1967, referred to the “millions who have morally risen above prevailing prejudices” and were “willing to share power and to accept structural alterations of society even at the cost of traditional privilege.”) As Cashin observes, there was not a majority of such “culturally dexterous, other-regarding souls” in 1967, nor were there in 2017. In recent weeks, the diversity of voices protesting police brutality in the death of George Floyd and other people of color and demanding an end to systemic racism suggests progress toward such a majority.

Cashin predicted that one positive future trend contributing to such dexterity would be the dramatic growth in interracial intimacy, both in authentic friendships and in family relationships. Loving and Palmore both attacked unconstitutional obstacles to such intimacy, even though Linda Sidoti Palmore’s legal victory proved hollow.

Posted 3:49 PM by Linda McClain [link]