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).
Rachel F. Moran
In “The
Architecture of Desire,” Professor Solangel Maldonado offers a fresh take
on the dynamics of interracial marriage and dating. I assume that I was asked to join the
conversation about Professor Maldonado’s book because I wrote “Interracial
Intimacy: The Regulation of Race and Romance,” published by the University
of Chicago Press in 2001. Several
decades have passed since my book came out, so I could not help but read Professor
Maldonado’s work with an eye to what had changed in the intervening years.
In
some important respects, the short answer turns out to be very little. Take, for example, rates of interracial
marriage. When I wrote about these
patterns over twenty years ago, African Americans had the lowest rate of out-marriage,
while rates for Asian Americans and Latinos were substantially higher. Based on Professor Mary Waters’ testimony before
Congress in 1997, I reported that “over 93 percent of whites and blacks choose
same-race partners as do 70 percent of Asians and Latinos and 33 percent of
Native Americans.” Professor Maldonado’s
book tells us that “only 18 percent of African Americans marry out,” while
“more than one-third of U.S.-born Asian Americans and Latinos as well as a majority
of American Indians . . . marry out.”
This suggests that in the last 27 years, the out-marriage rate for
African Americans on average has risen by less than one percent each year. Meanwhile, the rates for Asian Americans and
Latinos have remained about the same. Some
of the reported growth may be due to differences in how the relevant
populations are counted. Professor
Maldonado, for instance, looks at only U.S.-born Asian Americans and Latinos, a
subset of these populations with higher rates of intermarriage.
Even assuming that all the growth in intermarriage is real, it is still quite modest. That is especially true in light of the demographic change that occurred in the United States from 2000 to 2020. According to research done by William H. Frey for the Brookings Institute, during that time, whites declined from approximately 70 percent to just under 60 percent of the population. Meanwhile, the Latino population grew from 12.5 percent to 18.7 percent, and the Asian American population increased from 3.6 percent to 5.9 percent. The black population was relatively stable, remaining at about 12.1 percent. Based solely on these population shifts, one might have anticipated some increase in intermarriage, and as Professor Maldonado herself observes, “if couples across the United States were randomly matched without regard to race, 44 percent of all marriages would be interracial.” In fact, only 19 percent are.
To
explain the persistence of depressed rates of intermarriage, Professor
Maldonado looks at both informal pressures and structural barriers. She reports that attitudes about interracial
marriage have altered dramatically. By
2021, 94 percent of Americans approved of marriages between whites and African
Americans, compared to just 48 percent in 1992.
Clearly, attitudes have changed more quickly than marriage patterns, a
gap that Professor Maldonado attributes in part to the ongoing influence of
family, friends, and colleagues as well as implicit biases. According to a study at a California public
university done in 2008-09, 35 percent of non-black students expressed fears
that they would confront societal and familial disapproval if they married a black
spouse. Moreover, the study found that stereotypes
about prospective partners of another race persist. For instance, 50 percent of Latino men and 29
percent of white men cited “aggressive personality” as a reason for rejecting black
women as romantic interests.
Professor
Maldonado also considers structural barriers that depress rates of interracial
marriage and dating. In 1967, the U.S.
Supreme Court struck down anti-miscegenation laws in Loving v. Virginia,
lifting the most salient legal barrier to interracial marriage. Even so, legacies of discrimination continue
to limit prospects for intermarriage.
The most important of these relate to ongoing segregation in
neighborhoods, schools, and workplaces. As
Professor Maldonado points out,
In our segregated society, many Americans do not have the
opportunity to interact with people of different backgrounds. Most Whites live in neighborhoods with few
African Americans or Latinos even though these groups comprise one-third of the
U.S. population. African American and Latino children often attend K-12 schools
with few White students, and, with the exception of historically Black colleges
and universities (HBCUs), the majority of selective institutions are
predominantly White. Workplaces are more
racially diverse, but Whites and racial minorities often hold vastly different
jobs, with the latter disproportionately represented in positions wrongly
labelled as ‘low-skilled, unskilled labor.’
Patterns
of segregation limit proximity to individuals of another race, who in turn
might become a romantic partner or spouse. In fact, Professor Maldonado notes,
“the majority of White individuals do not have any African American friends,
and neither do most Latinos.” Compounding this lack of proximity, segregation
limits educational and economic opportunities in ways that perpetuate
inequality along racial lines. To the
extent that marriage is typically endogamous not just with respect to race but
also with respect to socioeconomic status, these disparities in education and
earnings further lock in the prevalence of same-race marriage.
One
innovation in finding romantic partners that was in its infancy when I wrote my
book is online dating. Match.com
launched its pioneering dating site in 1995, and today, there are multiple
sites used by about three in ten American adults, according to a 2019
study by the Pew Research Center. According to the findings, that rate is
even higher for people under 30; for this cohort, 53 percent report that they
have used an online dating site. Moreover,
about one in ten adults living in a committed relationship found a partner
through these sites.
The
rise of online dating might suggest that cyberspace can transcend persistent segregation that limits physical proximity to
partners of another race. Professor
Maldonado gives the lie to any such Panglossian account of the miracle of
technology when it comes to romantic choice.
When people log on to dating sites, they bring with them biases and
assumptions forged in everyday life. Interracial
dating sites, which after all are businesses, have readily discerned that race
remains an important factor in identifying a partner. In fact, as Professor Maldonado notes,
Although several platforms have eliminated their race
filters in recent years, more than 75 percent of the top twenty-five grossing
dating apps requested users’ race at one point, and more than two-thirds
allowed users to filter daters by race and ethnic background. At least one site allowed users to filter by
how light or dark a person’s skin tone was.
In
fact, when Professor Maldonado and her research assistants created fake profiles
on six popular dating sites, they were prompted to express racial preferences
in ways that would be impermissible in other settings.
Another
area of considerable change since I wrote my book relates to same-sex
relationships. In 1986, in Bowers v.
Hardwick, the U.S. Supreme Court ruled that sodomy could be a crime,
and it was not until 2003, two years after my book came out, that the Justices
reversed themselves in Lawrence v.
Texas and held that consensual same-sex relationships should not be criminalized.
It was not until 2015 that the Court recognized a right to same-sex marriage in
Obergefell v.
Hodges. Today, same-sex unions
represent a tiny share of marriages in the United States. According
to the Census Bureau, in 2021 just 1.2 percent of married couples were same-sex. Although the Supreme Court’s high-profile
decisions all involved gay men, most same-sex marriages are between two
women.
Professor
Maldonado’s book explores interracial intimacy among same-sex couples, and she
finds that they are more likely to cohabit and marry across the color line than
straight couples are. Gays and lesbians rely
more on online dating to meet a partner than heterosexuals do, and online
preferences reveal the persistence of racial considerations among gay men. They continue to express strong preferences
for white partners, while lesbians are open to romantic partners of all races. Even so, gay men are more likely than
heterosexual men to cohabit with a partner of a different race, perhaps because
of a limited pool of white prospects. Same-sex marriages are substantially more
likely to be interracial: Thirty-one percent of these couples are intermarried
compared to 19 percent of heterosexual spouses.
Perhaps this reflects both the openness of lesbian women to interracial
relationships, and the willingness of gay white males to find a mate of another
race when the number of white partners is limited.
Whatever
the reason, opening the institution of marriage to a previously excluded group
has boosted the frequency of interracial marriage. This raises the intriguing possibility that
softening the boundaries of marriage might further increase these rates. While Professor Maldonado emphasizes racial
hierarchy as a barrier to intermarriage, it seems possible that hierarchies of
intimacy pose obstacles of their own. At present, the unique status of marriage sets
this institution apart from other forms of attachment, including long-term
cohabitation. At the same time, romantic
ties are distinguished from other sources of sustenance and support like
lasting friendships. The significance of
marriage has made it a particularly high-stakes decision. Young
people are delaying marriage, and less
affluent Americans are foregoing it altogether. Just as Blacks have the lowest rate of
intermarriage among racial and ethnic groups, they also have the highest rate
of being unpartnered altogether. The high
stakes associated with marriage may lead individuals to become risk averse, either
when choosing to marry or when pursuing marriage across the color line.
Professor
Maldonado offers suggestions for improving the odds that individuals will find
and marry a spouse of a different race.
Many of these reform proposals focus on race-based concerns, rather than
on the stratification of marriage and other personal relationships. She argues that online dating sites should be
treated like other public accommodations, so that they cannot facilitate
discrimination by creating filters to screen out prospective partners based on
race. Professor Maldonado makes clear
that users of these sites could still express racial preferences and act on
them in choosing whom to date, but the sites themselves could not prompt this
conduct by making it easy to profile and exclude romantic prospects on racial
grounds. Professor Maldonado also describes
steps to combat segregation in housing and education, which in turn would make
it more likely that people could interact with those of other races throughout
their lives. She explicitly recognizes
the limits of these approaches, but she also believes that any reforms must be
circumscribed due to our nation’s vigorous protection of liberty interests,
including the freedom to marry.
Based
on these proposed interventions, any changes in interracial marriage rates are
likely to remain incremental—as has been true in the decades since I wrote my
book. That has left me wondering whether there is any prospect of disruptive
change in the coming decades that could alter the calculus for interracial
intimacy. I confess that I have been a
bit hesitant to elaborate on these thoughts.
Law is deeply rooted in the past, and lawyers generally abjure anything
that looks too speculative. The simple
truth is that law works best under conditions that are relatively constant and
predictable. Under these circumstances,
precedent can serve as a useful anchor to promote stability. When there are profound, rapid
transformations, however, the wisdom of the ages may become the
short-sightedness of the past. Law can
become unmoored and seemingly irrelevant if it fails to meet the moment.
Despite
my reservations, I am going to indulge in some guesswork here. I have been struck by the dramatic
disruptions that climate change is bringing to the United States and the
world. There are several reasons to
think that these shifts could affect patterns of intimacy, including those
across the color line. For one thing,
ecological change has already begun to lead to drought, famine, and the
collapse of agricultural economies.
Those changes in turn have produced political instability and led to
diaspora and displacement. These
pressures in turn are likely to alter the demographic profile of nations that
receive migrants, increasing the odds that intermarriage eventually will
increase. At the same time, high levels of immigration could produce a backlash
marked by nationalism and xenophobia.
Those responses in turn could reduce the odds of intermarriage.
In the
American legal system, these pressures on intimacy so far have manifested
themselves primarily in disputes over how marital and family relationships
affect the application of immigration laws.
In June 2024, the U.S. Supreme Court handed down its decision in Department
of State v. Munoz. There, the
American consulate in San Salvador rejected a petition for a visa to enter the
United States. Apart from citing a federal statutory provision, consular
officials offered no specific grounds for the denial. Normally, no reasons need
be given when a petition for a visa is rejected, but this applicant’s wife was
a U.S. citizen. She alleged that she
was affected by the rejection because she had to live apart from her husband
and raise her children alone. She
claimed that this burden on her right to marry at a minimum required the
consulate to provide reasons for the denial.
In an opinion by Justice Amy Coney Barrett, the Court rejected this
claim. After questioning how the
plaintiff had defined the relevant liberty interest, the majority concluded
that, in any event, there was no right “deeply rooted in this Nation’s history
and tradition.” Congress had long
regulated the entry of non-citizen spouses into the United States, so any
entitlements were a matter of “legislative grace” rather than judicial
fiat.
It's
interesting to note that this case involved a couple with two Latino
partners. So, this was not really a situation
directly implicating interracial intimacy as defined in Professor Maldonado’s
book. However, the decision did deal
with the marital rights of binational couples, and the Court found that these
rights were extremely limited, if they counted at all. In dissent, Justice Sonia Sotomayor made clear
that the majority’s opinion undercut marital autonomy rights set forth in,
among other cases, Loving
v. Virginia and Obergell v.
Hodges. These decisions
recognized a right to marry a partner of a different race and a partner of the
same sex, respectively. Justice
Sotomayor also linked Munoz to the Court’s decision striking down reproductive
freedom in Dobbs
v. Jackson Women’s Health Organization, arguing that the majority once
again had manipulated the meaning of a liberty interest to weaken protections
for a woman’s autonomy. Justice
Sotomayor’s reasoning suggests that the need to regulate growing pressures at
the border could erode marital and reproductive freedoms for everyone.
Climate
change could alter not just marital rights but the human capacity for
intimacy. Global
pandemics, extreme weather, food and water shortages—all could affect life
expectancy and quality of life. A
growing sense of vulnerability might strengthen interpersonal relationships if
individuals cling more closely to friends and loved ones as a buffer against
adversity. What is unclear is whether
those stronger ties would develop across racial or ethnic lines. During
the COVID-19 school shutdowns, some affluent families created learning pods,
but they reflected the segregated nature of neighborhoods and friendships. The pods did not interrupt these patterns but
instead reinforced them as families retreated into networks of privilege
identifiable by race and socioeconomic status.
Climate
change could lead people to grow more confrontational. Recent
studies on the impact of rising temperatures have found a correlative increase
in civil war, interpersonal conflict, and perhaps even self-harm. Growing conflict could weaken the capacity
for intimacy, including interracial relationships. So far, global maps show
that in contrast to Africa, the Middle East, and Asia, the United States has
been remarkably free of civil conflict.
It is an open question whether that insulation from destabilizing
aggression will persist. If it does,
then perhaps incrementalism will be the road map to the future of interracial
intimacy. If not, who knows?
Rachel
F. Moran is Professor of Law at Texas A&M University School of Law. She can be reached at moran@law.tamu.edu.