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).
Naomi Cahn
When I
teach Loving v. Virginia in family law, I remind students that, in 1967,
Virginia was not alone in banning interracial marriage. And I point out that many of their parents were alive during
this era.
This semester, I will follow up to ask if racial preferences continue to shape my students’ dating and relationship choices. I suspect that they will indignantly declare that such intimate discrimination is a relic of the past.
After reading Solangel Maldonado’s compelling book, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality, I will be fully prepared to respond by pointing out the history of laws that have prohibited relationships as well as the numerous other laws that have affected our seemingly most intimate choices as to partners – and their ongoing effects. As Professor Maldonado points out, anti-miscegenation laws were, at one point or another between 1661 and 1967, in effect in 41 states. Under a 1661 Maryland law, for example, not only would “a free White woman who married an enslaved Black man [] be enslaved by her husband’s enslaver,” their children would also be born into slavery (p. 39).
Other
laws profoundly affected interracial relationships, even if they did not
directly ban such relationships. Federal law “exclude[ed] anyone who was not
White” from immigrating to the U.S. (p.
48). While the 1952 Immigration and
Nationality Act ended these exclusions, only in 1965 did Congress abolish quotas for
immigrants from certain countries.
And, as
students learn in Property, it wasn’t until 1948, that the Supreme Court
outlawed racially restrictive covenants in housing, although these clauses
still exist today (p. 95). Racial segregation in schools (legal until Brown)
also served as a barrier to meeting students from different races.
It might
be easy to point to these landmark cases, and laws such as Title VII and the
Fair Housing Act that ban discrimination today, and claim that dating
preferences are simply personal choices, and the law is irrelevant to these
deeply intimate decisions.
Professor
Maldonado calls that bluff, pointing out that not only are there continuing
impacts from these older laws that mandated (or facilitated) discrimination,
but even the newer ones have exclusions that permit ongoing discrimination. For
example, Title VII only covers employers of a certain size, while the Fair
Housing Act has a carve-out for owner-occupied smaller housing units (pp.
70-71). Residential segregation continues, as does the existence of
racially-segregated occupations, with white men more likely to work in higher-paid
jobs.
The ongoing disparities and discrimination outside of the family cannot, Professor Maldonado shows, be separated from what occurs within the family. In the book, Professor Maldonado carefully documents how intimate preferences “follow a gendered racial hierarchy” from dating through long-term relationships (p. 14). She also describes the consequences of these racial preferences, including reduced opportunities for long-term partnerships (p. 118) and psychological, social, and economic harms that are intergenerational (Chapter 5).
These
preferences are, of course, shaped by family members’ perspectives (Professor
Maldonado calls on her own personal experiences as a partial exploration of this
point), as well as the communities in which people grow up. People gravitate towards
others whom they find similar with respect to income, socioeconomic status and attractiveness (p. 20).
Even
dating apps are not neutral, notwithstanding the potential possibilities of
social media to expand our circles of community. As Professor Maldonado points
out, laws do not prevent against discrimination in the dating market (p. 66). She
documents the race consciousness of dating apps, explaining that a research
assistant developed fake profiles on various dating apps (p. 67). Users were asked to indicate not just their race
but also, in some cases, their racial preferences for dating partners. Race can
easily be “used as a basis of decision making in
ways that are hard to detect,” as Professor Catherine Powell points out in another
context.
In the
final chapter, Professor Maldonado suggests legal solutions that will diminish
the constraints on interracial intimacy. While recognizing that attraction is
complicated, and race might play a role –regardless of the law -- in people’s
intimate choices, Professor Maldonado argues that laws can make a
difference. For example, statutes could
“prohibit dating platforms from facilitating discriminatory conduct” (p.
132). In accordance with the book’s
theme that our intimate preferences are shaped by numerous types of law, other
solutions address breaking down transportation and education barriers to
interracial connections.
A book
that focuses on interracial intimacy inevitably notes that racial preferences “reduce
some individuals’ opportunities to find intimate partners” (p. 119). That
observation is nicely in conversation with the developing field of scholarship
– including the work of Eleanor Brown and Kris Marsh - that looks at race, marriage, and those who live
without partners, often by choice.
Professor Maldonado’s book is a striking discussion of how
past discrimination continues to structure our intimate choices and of the
law’s historic, current, and potential role in restructuring how those choices
are made. The family is not a private sphere, walled off from the market.
Housing and employment and immigration law continue to affect not just where we
live, but where we go to school, with whom we will make friends, whether we
will attend college and what type of college – and whether and with whom we
might ultimately form families.
The book is a warning that the personal is political, a primer on the role of race in intimate decisionmaking, a reminder that the law plays a critical role both inside and outside of the family, and a rallying cry to transform the law.
Naomi Cahn is the Justice Anthony M. Kennedy Professor at the University of Virginia School of Law. You can reach her by e-mail at ncahn@law.virginia.edu.