Commentary on The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality

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).

Rick Banks 

There's a lot to love in this book about love. Solangel Maldonado wisely rejects any assumption that colorblindness reigns supreme in the domain of intimate decision-making. She highlights the persistence of racial hierarchy in the market for intimacy. She recognizes the distinctiveness of the black experience. Amid increasing rates of interracial coupling, African Americans, women in particular, remain more racially isolated and disfavored than other groups.

A major contribution of the book is to set that racial isolation in context, to explain how such an outcome can result from the individual and seemingly idiosyncratic decisions of millions of individuals. Part of the answer is to be found in history. Maldonado correctly links current day patterns of intimacy to prior laws and practices, and the norms and understandings they underwrote. But current patterns are not only an inheritance from the past; they are buttressed by contemporary policies as well—from the legal rules that produce segregated neighborhoods and schools to the racial filters of online dating services.

Law, of course, pervades all the settings in which people live and form relationships. In this brief commentary, I raise three issues prompted by Maldonado’s insightful book. First, what would racial justice in the domain of intimate decision-making look like? What patterns of interracial coupling would arise if matches were untainted by racism? Second, how useful is the idea of discrimination in thinking about patterns of interraial coupling? And third, how should we think about the issue of relationships and racial justice?

Let’s take the first question first. In thinking about issues of interracial coupling, I’ve always been troubled by the question of baseline: What percentage of within group versus outgroup coupling would be right, fair, just (pick your own term), emblematic of having shed the hierarchy bequeathed by our past? Sociologists construct measures of racial segregation (with housing, for example) where the baseline imagines members of different racial groups being randomly distributed across neighborhoods. However appropriate that baseline in the context of housing, it would be odd indeed to apply it to intimate relationships. After all, people form those relationships on the basis of identities and cultural orientatations that are often very much intertwined with race (and, of course, religion and national origin) as well. My wife, for example, is African American, but that fact was not why I married her. Our attraction though was rooted in our having grown up in the same circles in Cleveland, Ohio, having attended the same elementary school, and our parents’ families having fled Georgia and Alabama during the Jim Crow era. These commonalities are not the same as race per se, but they are all heavily intertwined with race. Frankly, I couldn’t have shared those particular ties (which provide the sort of foundation for a long-lasting relationship) with anyone who wasn’t African American. So long as race remains a potent source of identity (perhaps more so for African Americans than for other groups), I’d expect in-group marriage to remain common.

This leads to the second question: How useful is the idea of discrimination in intimate coupling? However useful the concept in other settings, here it seems less apt. The discrimination framework works best when there is a clear normative criterion for decision-making. For example, that the employer hire the most qualified applicant, or that the landlord rent to the tenant with the best credit and income. In the intimate setting, there is no such normative criteria. The other problem is that the idea of race blindness is even more fraught here than in other areas of life because so many of the characteristics that one might legitimately value are all intertwined with, even if not reducible to, race. I think here not only about appearance and complexion, but also cultural style, family characteristics, geographic origins, taste in humor and more. However much we try to parse race out from other aspects of a person, the reality is that the various facets of oneself are intertwined, culturally, figuratively, sociologically. So the very concept of discrimination seems less tractable here than in other areas of life.

Which leads to the third issue: why not accord more analytical primacy to the societal implications of marriage patterns and other relationships? Social relationships shape our lives. And the law is monumentally important in determining the types of relationships we form and with whom. Even domains that are accorded attention for reasons unrelated to relationship formation—schools and workplaces for example—the creation of social ties may be among the most important effects produced. The relationships formed shape people’s identities, form their values, and channel their behaviors. They influence myriad outcomes, from income to longevity. The Architecture of Desire is a testamant to the centrality of relationships in our lives.  Marriage looms large in the frame, but it is far from the only relationship essential to the good life that we all seek.

Ralph Richard Banks is Jackson Eli Reynolds Professor of Law at Stanford Law School. You can reach him by e-mail at rbanks@law.stanford.edu.