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).
Reginald Oh
The
thesis of Professor Solangel Maldonado’s important book, The Architecture of Desire:
How The Law Shapes Interracial Intimacy and Perpetuates Inequality, is that law
shapes and influences “choices of long-term intimate partners in ways that
perpetuate racial hierarchy and societal inequality.” (p. 6) She makes the
persuasive case that racialized intimacy patterns reinforce a “gendered racial
hierarchy with significant economic, social, and political consequences.” (p.
8)
i.
I see two distinct parts to her thesis. The first part is her contention that racialized intimacy patterns reinforce gendered racial hierarchy. The link between racialized relationships and gendered-racial hierarchy cannot be understated, and Professor Maldonado’s centering of racialized relationships in a discussion of race deepens our understanding of race as a social construction. I take one of her central arguments to be that race is socially constructed through relationships. Race is relationally constructed.
For
example, the construction of whiteness starts with intimate relationships
between whites. A white person marrying another white person and having white
children produces a white family, who, when living together with other white
families in a neighborhood, constructs white neighborhoods and white
schools, which then gives rise to the belief that good white
neighborhoods and schools are good because of whiteness. In this manner,
as Professor Maldonado argues, racial relationship patterns act as the
foundation of racial hierarchy, with whites as the superior race at the top. The
relational construction of race may arguably be the central mechanism for the
social construction of race.
The
insightful way in which Professor Maldonado connects racialized relationships
with racial hierarchy finds support in the social theory of sociologist Max
Weber, who argued that for any social or racial caste system to work, the high
status, dominant caste must strictly practice endogamy, the
practice of marrying within one’s class. If members of the dominant caste
routinely married members of the lower castes, Weber argued that the caste
system would break down entirely.
Why?
Because the inter-caste family would not easily fit in one caste or another. Does
the lower caste spouse now become a member of the dominant caste? Which caste
would the children belong to? Inter-caste relationships would destabilize the
integrity and identities of castes and ultimately make the system unworkable.
The same dynamic applies to a system of racial hierarchy. The normalization and
proliferation of interracial families via marriage would destabilize whiteness.
Is an interracial family white, black, or something else? How could white
neighborhoods and schools and whiteness be maintained in the midst of countless
racially integrated/mixed families moving in?
Not
to mention, if racially integrated/mixed families become a much larger
percentage of the U.S. population, it would mean a massive racial
redistribution of wealth over time. White families no longer could maintain
intergenerational wealth by keeping it within the white race. Instead, much of
that wealth would be redistributed by inheritance to non-white, mixed race
descendants. Interracial families, then, are a threat to both racial hierarchy
and white control over economic resources.
The
second part of Professor Maldonado’s thesis pertains to the law’s role in
shaping and producing racialized intimacy patterns. Professor Maldonado asserts
that, in the past, “[t]he law directly shaped preferences for partners of
certain races through anti-miscegenation laws, segregation, and structural
barriers to interracial intimacy, and those preferences contributed to and
continue to perpetuate racial and social inequality.” (p 10) By law,
Professor Maldonado refers not just to the law “on the books,” but to the
institutions established by law. Thus, the law of racial segregation is not
just the statute requiring that schools be racially separated, but the separate
white and black schools operating pursuant to that legal directive.
I
am particularly excited that Professor Maldonado interrogates the role that
segregation plays in obstructing the formation of interracial relationships,
because it aligns with my own work on the issue, and it is an incredibly
significant point that needs more attention. Segregation is a brutally effective
mechanism for preventing interracial relationships for a simple reason--an
interracial meeting has to occur for there to be any possibility of an intimate
relationship forming, and segregation is designed and functions to eliminate
those opportunities. As Professor Maldonado asserts, “We are unlikely to
partner interracially if we do not have the opportunity to meet and develop
relationships with people of different races where we live, work, go to school,
or play.” (p 111)
And
shifting to the present, chapter 11 is devoted to legalized segregation’s ongoing
role in producing racialized intimacy patterns. Professor Maldonado discusses
uncontroverted evidence that through legal mechanisms such as exclusionary
zoning and neighborhood school assignments, the law reinforces de facto housing
and school racial segregation. “The majority of White individuals do not have
any African American friends….” (p 91) She also cites statistics showing that
“public schools in many states are as segregated today as they were in 1954.”
75% of African American students attend schools where the majority of students
are not White, and 15% attend “apartheid schools” in which racial minorities
are 99-100% non-White. (p. 101) In conjunction with segregated neighborhoods,
in 2024, segregation is functioning in a similar way to how segregation
functioned under Jim Crow.
The
connection between segregation and low rates of interracial marriage between
whites and other racial minorities, but particularly with African Americans, is
one that I believe needs to be better understood and interrogated, and
Professor Maldonado’s book points us in that direction.
ii.
Now
I want to raise a critique of Professor Maldonado’s argument, and then provide
a response. The critique is that the thesis is overstated--the law does not significantly
shape or influence racial intimacy patterns in 2024. Racial segregation’s role
in producing racialized intimacy patterns is inconsequential, and the proof is
in chapter 2’s in depth discussion of race and online dating apps.
Simply,
the argument is that the internet has liberated people from the confines of spatial
racial segregation. People transcend geography every day through their phones
and computers, and can meet people of all races at any time from all over the
world in cyberspace. While chapter 2 focuses on racial dating patterns on
online dating apps, dating apps are only a small aspect of the internet. Social
media platforms such as “X,” YouTube, Instagram, Facebook, Threads, and
countless other message boards and chatrooms provide unlimited opportunities
for interracial encounters.
In
light of the internet, the argument contends that low rates of interracial
dating and marriage actually disprove Professor Maldonado’s thesis. If people
of different races have multiple opportunities everyday to meet people of a
different race, yet they ultimately choose to date and marry someone of their
own race, that suggests that individual romantic preferences are the proximate
cause of racial intimacy patterns, not the law. And race preference is simply
human nature. People are attracted to people who are like them. There’s nothing
morally wrong with this universal practice.
In
addition, Professor Maldonado’s argument that past discriminatory laws
restricting interracial intimacy still influence people today is problematic. That
may be accurate for people who were alive when those laws were still on the
books, but how do such past laws influence young people who were born decades
after Loving v. Virginia in 1967? Moreover, the “effects of past
discrimination” argument loses salience as this nation moves further away from
its admittedly racist past. Any influence is inexorably fading away.
Ultimately,
because the proximate cause of racial intimacy patterns is the free marketplace
of romance, none of Professor Maldonado’s suggested legal reforms, such as
eliminating racial sorting mechanisms on dating apps or racially integrating
high schools through magnet schools, will have any significant effect on those
patterns.
iii.
The
critique just laid out, while logical, is flawed, and Professor Maldonado is right.
The law in 2024 plays virtually the same role the law played before 1967
in shaping and influencing racial intimacy patterns, not just by eliminating
opportunities for interracial encounters, but by actually constructing
white race preferences in dating and relationships. And the people who knew
this better than anyone else are the white supremacists who designed and
maintained the social system of racial segregation during Jim Crow.
Southern
author Herbert Sass wrote an essay defending school segregation in the Atlantic
Monthly in 1955, the year after Brown v. Board of Education was decided. His
defense centered around the core purpose and function of school segregation--to
prevent interracial marriages from transforming the nation, over time, into a
majority mixed-race population. School segregation eliminated opportunities for
interracial encounters, but, more importantly for Sass, it instilled “race
preference” in young white children. He explained that race “preference
is a natural reaction to facts and conditions observed or experienced,
and through the action of heredity generation after generation it becomes instinctive.”
(emphasis added) Race preference, then, is a natural, instinctual human desire
to be with members of one’s own race, precisely the same romantic racial
preference that Professor Maldonado interrogates in her book.
What
Sass does in his article is to explain how people acquire race
preference, for he believes that race preference, while a natural instinct, is not
innate or inborne. He writes that “race preference…is one of those
instincts which develop gradually as the mind develops and which, if taken in
hand early enough, can be prevented from developing at all.” Sass writes
further, that “although it is a nearly universal instinct, race preference is
not active in the very young.” In other words, children are born without
the instinct. Race is not salient for young children. In fact, depending on the
age of a child, she may not even know or realize that she has a race.
Race
preference is analogous to the acquisition of language. No child is born with a
preference for a particular language. A child acquires her first and dominant
language by absorbing and listening to people speaking around her. Language
acquisition is a social process, and the hardwiring of language into a
person begins virtually from the moment of birth.
And
that’s precisely Sass’s thinking with respect to race preference. While
children are not born with race preference, it becomes a natural
instinct through socialization that must start at a very young age. And that is
why Sass was emphatic that it was “the elementary public school [that] is
the most critical of those areas of activity where the South must and will at
all costs maintain separateness of the races.”
Massive
resistance to desegregation, then, was about control over the public school’s
socializing function. Segregation was
the key to instilling white race preference in young white children, while
integration was an existential threat to that process. For Sass, integration
would socialize children to rob them of race preference.
How
so? By socializing (brainwashing for Sass) young children into developing
a preference for relationships with any race. He explains that “if the small
children of the two races…were brought together intimately and constantly
and grew up in close association in integrated schools under teachers
necessarily committed to the gospel of racial integration, there would
be many in whom race preference would not develop.” (emphasis added)
Why
not? Tom P. Brady, a Mississippi Circuit Judge, explains. He wrote a pamphlet
in 1955 arguing that integrated schools would result in something that would
end whiteness and white supremacy--young white and black children playing
together. He wrote, “You cannot place little white and negro children in
classrooms and not have integration. They will sing together, dance
together, eat together, and play together. They will grow up
together and the sensitivity of the white children will be dulled.
Constantly the negro will be endeavoring to usurp every right and privilege
which will lead to intermarriage.” (emphasis added) In other words, in
integrated schools, young white and black students would be encouraged to and
actually develop friendships with each other, and in the process, develop an
instinct for the human race, not just the white race. And that would spell the
end of white supremacy.
The
racial segregation of elementary schools, on the other hand, hardwired race
preference in young white children. To see this point, take Brady’s quote and adapt
it to racially segregated schools: When you place just little white children
in schools together, you will have segregation. Little white children will sing
together, dance together, eat together, and play together. They will grow up
together and the sensitivity of the white children to race will become second
nature, an instinct, which will lead to white marriages.”
Flashforward
to 2024, and as Professor Maldonado documents in her book, the scenario just
described is occurring over and over again throughout the nation’s elementary
schools. Little white children are playing and dancing with each other in
exclusive white schools (and neighborhoods) and with each game of dodgeball,
with each dance, race preference for whites is being hardwired into them. With
that racial hardwiring, when they grow up and go off to more racially diverse
settings such as college, the workplace, and the internet, their racial instinct
kicks in, and they “naturally” become friends and romantic partners with other
whites, while rejecting or ignoring opportunities to relate with non-whites. In
that process, they are engaging in the systematic relational construction of race
and entrenching white racial hierarchy.
Ultimately,
Professor Maldonado is right, and it is the law of de facto racial segregation
and exclusionary zoning, not just influencing racial intimacy patterns, but actually
bringing them into being. And for that reason, “the law should address the
inequities stemming from its actions.” (p 10)
iv.
Where
do we go from here? We go right back to Brown and the need to dismantle
racially segregated schools. This nation is still operating under the shadow of
the separate and unequal regime of Plessy v. Ferguson. To
overrule Plessy for good, it is necessary for another Brown
decision to declare that separate is inherently unequal, whether or not racial
separation was intentional.
However,
since we may be waiting a long time for Brown 2.0, all the legal
remedies and policies offered by Professor Maldonado should be actively
pursued. However, greater emphasis is needed on legislative or school district
measures to racially integrate elementary and middle schools.
Some of the proposed high school integration measures like magnet schools may
be far too late in the process, for racial hardwiring will likely direct most
white teens in one relational direction.
Legal
and policy solutions should also focus on creating racially inclusive
recreational centers, playgrounds, public swimming pools, amusement parks, and youth
sports leagues geared for young children. Taking it one step further, Professor
Maldonado may want to examine whether and how daycare and preschool operate to
hardwire race preference in white babies, toddlers, and preschoolers.
A
final note for thinking about Professor Maldonado’s book. For each time in her
book that she talks about intimacy, relationships and marriage, consider or
incorporate love. Would, for example, any new insights or alternative
avenues for research and analysis develop if we altered the book’s title to
“The Architect of Love: How the Law Shapes Interracial Love and
Perpetuates Inequality?” Or if we changed the title for chapter 4 to “How Law
Shapes Opportunity for Interracial Love?” I would love for Professor Maldonado
to try this thought experiment, and then let us know what she learns about law
and its role in shaping interracial love.
Reginald
Oh is the Professor Alan Miles Ruben and Judge Betty Willis Ruben Professor of
Law at Cleveland State University College of Law. He can be reached at
r.oh@csuohio.edu.