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).
Aníbal Rosario Lebrón
“It begins with absence and desire.
It begins with blood and fear.
It begins with a discovery of witches.”
Deborah Harkness, A Discovery of Witches
In Deborah Harkness’ bestselling
series, All Souls Trilogy, her protagonist – historian and reluctant witch – Diana
Bishop, finds herself in an outlawed relationship with a vampire. A species’ covenant
in the Middle Ages prohibited daemons, witches, and vampires from
interbreeding. This covenant brought prejudices, fear, and death; creating a
hierarchy that defined the inequalities in their society.
Diana’s desire for a
vampire pushes her to defy the law and takes her on a journey through time to
find a way to vindicate her relationship. In her travels, just like scientists
recently discovering that some human immunity advantage is due to Neanderthal
and Homo Sapiens interbreeding, Diana
uncovers that powers have been dwindling across all magical communities because
of the interbreeding prohibition and that the key to magic survival was
miscegenation, especially daemon DNA which gave rise to weavers, powerful
witches like herself. Empowered with this knowledge, Diana gains all species’ acquiescence
to rescind the covenant and puts in power the long-marginalized daemons,
eradicating their traditional hierarchies.
Much like Diana, in The Architecture of Desire, Professor Solangel Maldonado takes us on a journey to understand how the United States legal system – designed to foster and maintain White supremacy – laid the foundation for a caste system in dating and marriage. Contrary to Diana’s story, Maldonado’s account does not stop at the covenant’s dismantling. Instead, she shows us that racial hierarchies are hard to break down even when the law and society commit to racial equity and that marriage still plays an important role in safeguarding White supremacy.
First, Maldonado
discusses how, in the United States, even after attempting to dismantle the
covenant with the abolition of anti-miscegenation statutes, the eradication of
legally enforced segregation, the rejection of race-based immigration, and the
enactment of anti-discrimination laws such as the Civil Rights Acts, the dating
and marriage caste system continues today, with most groups preferring a White
person as a romantic partner. After presenting how racial hierarchies have not
been shifted, she proceeds to show us that these racial preferences have real
effects in terms of equity in society as marriage continues to bestow legal
benefits and produce education and economic advantages to a continually shrinking
elite (mostly White) and only to minorities that assimilate by interracial
marriage.
Maldonado’s thesis is
even more striking when we juxtapose her insightful exploration of marriage and
dating in the United States with Harkness’ fictionalized racial utopia. The
abolition of the covenant in Bishop’s story, contrary to the reality that Maldonado
skillfully summarizes in her book, forecasts a new era in which interbreeding
is not frowned upon but encouraged to preserve the health of all magical
creatures. The failure of that utopia in our society perhaps lies in a concept
that Maldonado repeats throughout her book, assimilation.
As this concept and
its cousin honorary White[1]
popped up throughout the book, I became more apprehensive as to whether
achieving racial equity through marriage might be possible. The way we
eradicated our covenant, contrary to Harkness’ story, was not to value
miscegenation and the marginalized groups but to make more accessible Whiteness
(i.e., the all-encompassing set of privileges, especially the economic
ones associated with being White and not the racial tag). The reason to no
longer separate the races was not a need for them to mix for their survival but
a less powerful convergence of interests. That is why, perhaps, as Maldonado discusses, even after
dismantling segregation and anti-miscegenation, more subtle ways of keeping
people physically, psychologically, and romantically separated evolved.
Two main mechanisms in
which this separation has been achieved emerge from Maldonado’s analysis. The first
is single-family zoning. Through this apparent race-neutral mechanism, people
of color have been precluded from coming into contact with their White
counterparts creating a funnel that further prevents all races from meeting in
schools, universities, jobs, and social spaces. Not being able to afford this
type of housing because of the long history of capital extraction that people
of color suffered and from which Whites benefited further enthrones Whiteness.
For me, it also
highlights the role marriage has in perpetuating inequality. First, to
participate in capital production and its intergenerational transfer, marriage
only serves if one marries up by marrying White. And even, as Maldonado
discusses, in the few exceptions in which the non-White partner is the one with
more capital marrying White still means marrying up because it gives access to the
social benefits of Whiteness or honorary White. Thus, marriage only reifies
Whiteness instead of dismantling it, making assimilation the goal of racial
equity. Yet, racial equity cannot come about without Whiteness being devoid of
any meaning.
Second, as I have argued, family normativity and its dyad with marriage 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. As Maldonado discusses, that seems
to be an important consideration for Black heterosexual women who are at the
bottom of the dating caste and seem to prefer also to be in relationships with
Black men, which often means embracing singlehood.
The second separation
mechanism that emerges from Maldonado’s analysis uses the distinction between
the public and private to reinforce inequalities by either not regulating
discrimination in what is arbitrarily defined as a private space or making
exceptions to discriminate in such spaces. This long-used strategy in the law is
central to Maldonado’s critique in her book. She argues that racial inequality
is fostered through racial filters in dating platforms, which have evaded the law’s
reach. The ease of excluding people through these filters exacerbates the
separation between racial groups to the point of rendering some of them
invisible. This absence of desire created, sanctioned, and fostered by the law,
thus, precludes racial minorities from assimilating (i.e., marrying
interracially).
Maldonado suggests
that we must work to eradicate discrimination in these private spaces of online
dating and erase the racial separation and segregation still in existence in
the United States so that people from different races meet and engage in
interracial marriage as a tool of social mobility that slowly erodes racial
inequities. Although she acknowledges that using marriage in this way is
problematic, in part, because her research shows that marriage has been used as
a tool for preserving White supremacy, she argues that it is necessary to
transform the institution of marriage by increasing the number of interracial
couples, especially considering the pervasiveness of all other forms in which
White supremacy is imposed in society today.
Essentially, this would be a path of least resistance to racial equity
for her.
She proposes
prohibiting dating platforms from providing users with race filters as the
harms associated with this practice are parallel to the ones caused by allowing
property owners to advertise their racial preferences or using third parties to
sieve applicants based on race, which is outlawed. Or as others suggest, treating
dating platforms as public accommodation spaces as they serve the same purpose
as their nonvirtual counterparts (e.g., bars) in which race
discrimination is prohibited. Maldonado understands that erasing this
separation and segregation in the dating space is insufficient if we still
allow it in other spaces. Thus, she advocates for other reforms such as
eliminating the Mrs. Murphy exception which exempts live-in landlords
with four or fewer units from the anti-discrimination mandates in the Fair
Housing Act.
She is arguing fundamentally
for prohibiting race discrimination in private spaces. While reading Maldonado’s compelling
arguments, I wondered whether it would be more effective if the harmful
distinction between the private and the public were to be erased.[2]
This strategy seems more imperative after Maldonado’s discussion on the
constitutional challenges and limits to her proposal based on association and
speech rights and the recent Supreme Court trend of placing liberty interests
above equality. Perhaps, instead of a vertical application of the Constitution,
we should push for a horizontal one, in which the state action requirement is eliminated, and rights are enforceable between private citizens.
This approach, for
me, would better propel the other excellent proposals that Maldonado proffers. She
advocates for abolishing the current K-12 assignment system, making college
campuses more racially diverse, and transforming public transportation so
people of all races can share the same public spaces. These ideas would ensure
that people of all races are no longer separated and find opportunities to date
interracially. But, for interracial dating to be successful, discrimination
must not be fostered subtly by the law as it occurs today, and that might
require extending the protections of the constitution to private individuals’
interactions. In addition, in what I consider the most important of Maldonado’s
suggestions, it is crucial to change people’s perspectives about race and the
United States’ racial discrimination history through education so that we can
allow our desires not to be controlled by the social constructs of race.
As A Discovery of Witches’ preface states, it begins with absence and desire. To build a more equitable society for the benefit of all, the Law must ensure the absence of discrimination to allow desire to flow in all directions without distinctions of race. Professor Solangel Maldonado’s sharp and thorough examination of the law’s role in forging desire through marriage and its contribution to perpetuating inequality is a must-read for everyone in society. Her ideas invite us to think about urgent legal reforms. But more importantly, to self-reflect about our own intimate relationships and their role in the larger scheme of building an equitable world.
Aníbal Rosario
Lebrón is Associate Professor of Law at Rutgers Law School. You can reach him
by e-mail at anibal.rosario.lebron@law.rutgers.edu
[1] Sociologist Eduardo Bonilla Silva posited the existence of
three main racial categories (i.e., whites, honorary whites, and
collective blacks). Honorary Whites are essentially those groups or individuals
who are intermediate rank in the racial hierarchy that has the highest status
for whites and that enjoy as such some of the privileges of Whiteness in
society.
[2] The private and public divide
has been an essential part of sex, sexual orientation, and gender
discrimination.