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).
Solangel Maldonado
Thank you so much to Linda McClain for organizing this symposium and Jack Balkin for hosting it. I am delighted to engage in this conversation with an extraordinary group of scholars. This is the first of several posts responding to their comments.
The central argument of the book is that that our romantic preferences, as shaped by the legacy of anti-miscegenation laws, segregation, and discriminatory immigration rules, along with current policies and practices—such as exclusionary zoning, the public school assignment system, and spatial segregation—perpetuate inequality. The book also critiques the law’s failure to prohibit dating apps from facilitating discrimination by their users.
When I discuss the
book with different audiences, I am often asked whether individuals may have
non-racist reasons for preferring partners of certain races. The answer of
course is yes. As Kevin
Johnson observes,
intimate relationships “implicate very individual issues of
beauty, romance, cultural attachments, and comfort” and “complications multiply
when there are both racist and non-racist reasons for desiring romance with a
person of a particular racial background.”
This may be especially true for racial and ethnic minorities and recent immigrants
who may seek a romantic partner who understands their culture, food, religion,
and language, especially if they wish to
raise children. Racial and ethnic minorities who have been exposed to
discrimination or fetishization, especially, may prefer intimate partners who
can relate to their experience as a racial or ethnic minority in a segregated
society. For example, a Latino who expresses a preference for a Latino partner
who shares their language and culture, does not reinforce racial hierarchy.
However, when a Latino prefers White partners or light-skinned Latinos but
rejects their darked-complexioned counterparts, their preferences are likely
rooted in anti-Black bias and reinforce White supremacy. Similarly, an Italian
American man who wants a partner of Italian heritage because he is seeking a
common culture, language, and religion does not reinforce racial hierarchy even
though his preferred partner is likely to be White. In the aggregate, our racial preferences reinforce
a racial hierarchy but our individual preferences are multi-faceted. As such, I propose that the law remove the
barriers to interracial intimacy that it created but oppose any legal efforts
to encourage interracial intimacy.
As a scholar
opposed to the law’s privileging of marriage, I was a bit uncomfortable writing
a book that focuses on marriage and marriage-like relationships, especially as more
individuals are choosing to be single. However, that focus seemed inevitable in a book about romantic
relationships until Naomi Cahn pointed out that my argument that “racial preferences ‘reduce some individuals’
opportunities to find intimate partners,’” is “in conversation with the
developing field of scholarship . . . that looks at race, marriage, and those who live without partners, often by choice.” I wish I had made this connection before I
published the book. As Kris Marsh, the author of The Love Jone Cohort: Single and
Living Alone in the Black Middle Class, argues, the choice to live without a committed romantic
partner is influenced by many factors but “racism and gendered racism
constrain personal choices and also need to be taken into consideration when
discussing Black singlehood.”
As I argue in the book, “for many individuals, marriage provides myriad
psychological, economic, and societal benefits” and thus the law should be
concerned about racial preferences because they “may limit a person’s
opportunity to secure these benefits for themselves and their children.” (p.
112). Racial preferences limit Black
women’s access to these benefits. Since
the law played a significant role in creating our racial preferences, I propose
that it remove the barriers to interracial intimacy that it created but
understand Dorothy
Roberts’ skepticism about
the “efficacy of a strategy for promoting racial equality that focuses on
dating preferences.” Roberts worries that “[r]ecommending the expansion of
black women’s dating options . . . seems to sidestep the real issues—the long
history of vilifying stereotypes of black women’s sexuality and maternity
reinforced by state policies, mass arrest and incarceration of young black men,
racist employment discrimination, and under resourcing schools in black
neighborhoods.” I agree that my proposals—prohibiting dating apps from accommodating
or facilitating discrimination by users and removing the structural barriers to
interracial intimacy—will not address the mass arrests of Black men, racial
discrimination in employment, or denial of resources to Black neighborhoods. However,
my proposals to reduce residential, educational, and spatial segregation might
help break down stereotypes about different groups, including Black women, and
allow Black and Brown children to attend better-resourced schools.
Roberts’ observation is a welcome
reminder to clarify that my proposals, if adopted, would likely benefit college-educated
Black women who, but for racial preferences, would have greater access to
marriage and its economic and societal benefits (for themselves and their
children). But as I explain in other work,
access to a larger dating pool will not address the subordination of low-income
Black women. As I acknowledge in the book, “interracial friendships and intimate relationships between people with
vastly different levels of education and socioeconomic status are unlikely to
develop even if they share the same spaces.” (p. 144). The majority of
African-Americans, however, are not poor and Black women are earning college
and graduate degrees at high rates. They are purchasing homes in well-resourced
neighborhoods, accumulating wealth, and raising children without a
co-parent. They don’t need marriage to live
fulfilling lives. But as Kris Marsh
argues, Black women’s decisions not to pursue marriage or marriage-like commitments
are made within the constraints of gendered racism that limit their ability to
find similarly educated and economically stable partners. These constraints may
deprive their children of the advantages that children with two college-educated
and economically stable parents enjoy since
single parents, regardless of their level of education and income, rarely have
the same resources, financial or otherwise (time, for example) to invest in
their children as married parents.
I am troubled by a
legal system that advantages the
children of married couples and especially the children of married couples in
which one spouse is White. As Aníbal Rosario Lebrón aptly observes, “marriage only reifies
Whiteness” and “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.” Thus, my goal is
to demonstrate how racial preferences exacerbate the inequality that marriage
perpetuates while rejecting the notion that “romantic partnerships should be used as a mechanism for
racial and economic equality.” (p. 10). Consequently,
I oppose using the law to promote marriage, including interracial marriage, and
focus instead “on removing the barriers that the law created.” (p. 144).
Although
this includes prohibiting dating apps from facilitating discrimination by their
users, I don’t believe that the law can or “should
prohibit individual users from expressing or acting upon their racial
preferences.” (p. 132). Lebrón suggests
that my arguments “would be more effective if the harmful distinction between
the private and the public were to be erased.” While I agree that the law
should completely eliminate the distinction between the private and public in
the housing and employment contexts, I am hesitant to invite the law’s
continued interference in intimate relationships. Any legal restrictions
on users’ abilities to express their racial preferences would likely meet
resistance but just as important, the law’s influence on intimate relationships
has historically done more harm than good.
I will address the comments raised by the other
participants in future posts.
Solangel Maldonado is the Eleanor Bontecou Professor of Law at Seton Hall University School of Law. She may be reached at Solangel.Maldonado@shu.edu.