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Loving and the Legacy of Unintended Consequences

MORAN FINAL 10/26/2007 11:52 AM
LOVING AND THE LEGACY OF UNINTENDED
CONSEQUENCES
RACHEL F. MORAN*
I. Introduction................................................................................240
II. Making History Rest on Traditional Assumptions.....................241
A. The Significance of Race....................................................243
B. The Meaning of Marriage...................................................249
C. A Domestic Paradigm of Race and Intimacy......................253
III. Undoing Traditional Assumptions: The Unintended
Consequences of Loving.............................................................256
A. New Frontiers in Race: Multiracialism and Colorblind
Segregation..........................................................................256
1. The Mixed Promise of Multiracialism..........................257
2. The Rise of Colorblind Segregation..............................261
B. New Paradigms of Intimacy: Same-Sex Marriage
Advocacy and the Rise of Marriage-Minded Singlehood...264
1. The Same-Sex Marriage Movement.............................264
2. Marriage-Minded Singlehood.......................................274
C. From the Color Line to the International Border................276
IV. Conclusion..................................................................................281
[I]t has sometimes taken me ten years to understand even a
little of some important event that had happened to me. Oh, I
could have given a perfectly factual account of what happened,
but I didn’t know what it meant until I knew the consequences.
—Katherine Anne Porter1
* Robert D. and Leslie-Kay Raven Professor of Law, University of California
School of Law (Boalt Hall). I would like to thank Angela Onwuachi-Willig, who invited
me to participate in this symposium, as well as the faculty contributors and members of
the Wisconsin Law Review who conceptualized the event and made it a reality. I am
particularly grateful to Claudia Quiroz and Amy Arndt, the symposium co-editors, who
showed me such tremendous hospitality during my visit to Madison. Finally, I want to
express my appreciation for the contributions made by my research assistants, Sonia D.
Cook and Jenny Lam.
1. The Art of Fiction No. 29: Katherine Anne Porter, PARIS REV., Winter-
Spring 1963, at 1, 16, available at
http://www.parisreview.com/media/4569_PORTER.pdf.
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240 WISCONSIN LAW REVIEW
I. INTRODUCTION
If it can take a decade for a person to appreciate the implications of
a major life event, it can take even longer to realize the significance of a
turning point in the history of a nation. Perhaps for that reason, we hold
commemorative events like this one. An anniversary is an opportunity to
reflect on a pivotal moment with distance and detachment and to weigh
the consequences more fully than was possible at the time. On this
fortieth anniversary of Loving v. Virginia,2 perhaps what is most striking
is that a case deemed pathbreaking in its day now seems to have taken so
much for granted.3 Because the United States Supreme Court
interrogated the meaning of neither race nor marriage, Loving has been
invoked in a number of later struggles in ways that might have taken the
Justices by surprise. This result, of course, is part of the law of
unintended consequences: the more that is left unexamined, the more
likely that a fresh look will reveal implications beyond those originally
contemplated.
Here, I will explore Loving’s unintended consequences by
considering why the Court took so much for granted and how the opinion
later was deployed in unexpected ways. After briefly examining the facts
and holdings in the case, I will show that the Justices accepted
monoracial categories as a given, despite evidence of multiracial
complexity. The Court’s treatment of race reflected the need to
implement desegregation orders that turned on clearcut racial
distinctions. The Justices also regarded marriage as a longstanding
tradition. Already under attack for conjuring up unenumerated rights that
did not appear in the Constitution, the Court was loath to suggest that
marriage was anything other than an uncontroversial historical
institution.
Ironically, the Court’s assumptions about race and marriage have
been directly subverted by those who most openly lay claim to Loving’s
legacy. Proponents of multiracialism and advocates of same-sex
marriage argue that their reform proposals are a natural outgrowth of the
2. 388 U.S. 1 (1967).
3. Randall Kennedy attributed the “resolutely conventional, legalistic opinion”
in Loving to Chief Justice Earl Warren’s desire to avoid the criticisms that resulted from
his foray into social science evidence in Brown v. Board of Education, 347 U.S. 483
(1954), which declared state-mandated segregation of public schools unconstitutional.
RANDALL KENNEDY, INTERRACIAL INTIMACIES: SEX, MARRIAGE, IDENTITY, AND ADOPTION
275 (2003). In addition, a colleague on the Court, Justice Potter Stewart, described
“motherhood, marriage, family, flag, and the like” as the “eternal, rather bromidic
platitudes in which [Chief Justice Warren] sincerely believed” and which formed the
foundation of his jurisprudence. BERNARD SCHWARTZ, DECISION: HOW THE SUPREME
COURT DECIDES CASES 88 (1997).
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Court’s conceptualization of freedom and equality. At the same time,
Loving’s subtler consequences have gone largely unaddressed. The case
arguably ushered in a jurisprudential philosophy that treats
colorblindness and ongoing segregation as compatible. In addition, the
decision entrenched the primacy of marriage in the law’s recognition of
close personal relationships. Finally, Loving acquiesced in the
presumption that romance happens only among Americans and so the
decision has been of little import in dignifying and protecting the
intimate attachments of noncitizens. Such a complex legacy
demonstrates why a perfectly factual account of Loving simply will not
do, and so it may take some time to appreciate the consequences.
II. MAKING HISTORY REST ON TRADITIONAL ASSUMPTIONS
The Loving case is a story of romance and marriage thwarted by
race. A black woman, Mildred Jeter, and a white man, Richard Loving,
resided in Virginia but had married in 1958 in the District of Columbia.4
The couple left the state to exchange their vows because Virginia still
banned marriages across the color line.5 After the Lovings returned to
Virginia as man and wife, they were prosecuted for violating the state’s
antimiscegenation law.6 Upon pleading guilty, the Lovings were
sentenced to one year in jail, but their sentences were suspended if they
agreed to leave Virginia and not return for twenty-five years.7 The
Lovings then moved to the District of Columbia,8 but in 1963, they
decided to challenge their convictions on the ground that Virginia’s law
was unconstitutional.9 The U.S. Supreme Court ultimately declared that
the antimiscegenation statutes violated both the Equal Protection and
Due Process Clauses of the Fourteenth Amendment.10
Chief Justice Earl Warren wrote for the Court, which rejected
Virginia’s claim that under Pace v. Alabama,11 the racial classification
was permissible because it established a “separate but equal” regime for
marriage that treated blacks and whites equally.12 The antimiscegenation
statutes imposed the same penalties on each member of a couple,
regardless of race, but the law plainly treated interracial couples very
4. 388 U.S. at 2.
5. See id. at 3.
6. See id.
7. See id.
8. Id. at 11.
9. See id.
10. See id. at 12.
11. 106 U.S. 583 (1882).
12. 388 U.S. at 10.
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242 WISCONSIN LAW REVIEW
differently from same-race ones. In finding an equal protection violation,
a unanimous Court concluded that “[t]here can be no question but that
Virginia’s miscegenation statutes rest solely upon distinctions drawn
according to race.”13 The Fourteenth Amendment required strict scrutiny
of racial classifications that created “distinctions between citizens solely
because of their ancestry,” particularly when criminal punishments were
at issue.14 Because the eugenicist rationale for bans on intermarriage had
been discredited, the Court could discern “no legitimate overriding
purpose independent of invidious racial discrimination which justifies
this classification. The fact that Virginia prohibits only interracial
marriages involving white persons demonstrates that the racial
classifications must stand on their own justification, as measures
designed to maintain White Supremacy.”15
In a concurrence, Justice Potter Stewart made clear that this equal
protection analysis ended the case for him;16 there was no need to address
questions of due process. Despite Justice Stewart’s view, the Court held
that Virginia’s ban on interracial marriage deprived the Lovings of
liberty without due process of law.17 Because the Court was concerned
about creating elaborate unenumerated rights not expressly mentioned in
the Constitution,18 this part of the opinion was included only after Chief
Justice Warren substantially trimmed the substantive due process
analysis.19 In the redacted final version, he characterized the freedom to
marry as “one of the vital personal rights essential to the orderly pursuit
of happiness by free men.”20 Antimiscegenation laws relied on racial
classifications that were “so directly subversive of the principle of
equality at the heart of the Fourteenth Amendment [that they] surely . . .
deprive all the State’s citizens of liberty without due process of law.”21 In
short, this “‘basic civil right[] of man,’ fundamental to our very existence
13. Id. at 11.
14. Id. (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)).
15. Id.
16. Id. at 13 (Stewart, J., concurring).
17. Id. at 12.
18. See Stephen Kanter, The Griswold Diagrams: Toward a Unified Theory of
Constitutional Rights, 28 CARDOZO L. REV. 623, 678-83 (2006) (describing the Court’s
concerns about relying on the unenumerated right to privacy to protect sexual and marital
liberty in Griswold v. Connecticut, 381 U.S. 479 (1965)); Chase J. Sanders, Ninth Life:
An Interpretive Theory of the Ninth Amendment, 69 IND. L.J. 759, 769-73 (1994);
William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on
Constitutional Law in the Twentieth Century, 100 MICH. L. REV. 2062, 2239-41 (2002).
19. ED CRAY, CHIEF JUSTICE: A BIOGRAPHY OF EARL WARREN 452-53 (1997).
20. Loving, 388 U.S. at 12.
21. Id.
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and survival,”22 could not be “restricted by invidious racial
discriminations. Under our Constitution, the freedom to marry, or not
marry, a person of another race resides with the individual and cannot be
infringed by the State.”23 Even after Chief Justice Warren’s redactions,
Loving stood clearly for the proposition that bans on intermarriage were
an affront to both liberty and equality.
A. The Significance of Race
The Loving opinion made important assumptions about the meaning
of race. Although both the National Association for the Advancement of
Colored People (NAACP) and the Japanese American Citizens League
attacked Virginia’s racial classification scheme as vague and unscientific
in their amicus briefs,24 the Court made clear that the validity of the
categories was not an issue in the case: “The Lovings have never
disputed in the course of this litigation that Mrs. Loving is a ‘colored
person’ or that Mr. Loving is a ‘white person’ within the meanings given
those terms by the Virginia statutes.”25
The Lovings may have adopted this strategy because the Court
previously had been unreceptive to claims of racial ambiguity. Three
years earlier, in McLaughlin v. Florida, the Court found that a criminal
statute exacting harsher penalties for interracial than for same-race
adultery violated equal protection law.26 In that case, police officers
determined the racial identities of the two defendants, Dewey
McLaughlin and Connie Hoffman, based on physical appearance.27
Hoffman accepted her characterization as white, but McLaughlin sought
to exculpate himself on the ground that he was not black but Latino. In
fact, Hoffman’s landlady, who had informed the police that the
defendants were having illicit sex, testified that McLaughlin was “a
Spanish fellow,” and McLaughlin stated that he was fluent in Spanish
and came from Lacieba, Honduras.28 Even so, the Court, in an opinion by
22. Id. (quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)).
23. Id.
24. See Brief of the National Association for the Advancement of Colored
People as Amicus Curiae Supporting Appellants at 7-9, Loving v. Virginia, 388 U.S. 1
(1967) (No. 395); Brief of Amici Curiae Japanese American Citizens League at 17-20,
Loving v. Virginia, 388 U.S. 1 (1967) (No. 395).
25. Loving, 388 U.S. at 5.
26. 379 U.S. 184, 184 (1964).
27. Transcript of Record at 58, McLaughlin v. Florida, 379 U.S. 184 (1964)
(No. 585) (testimony of Detective Nicholas Valeriani).
28. Id. at 23, 26, 36, 41, 46, 82 (testimony of Mrs. Dora Goodnick, landlady;
Detective Stanley Marcus; Detective Nicholas Valeriani; and Josephine DeCesare,
Secretary, City Manager’s Office, Miami Beach).
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Justice Byron White, ignored this evidence of racial ambiguity, accepted
the classification of McLaughlin as black, and struck down the law on
the ground that it wrongly discriminated between interracial and same-
race couples.29 The case was widely regarded as a step toward declaring
bans on intermarriage unconstitutional.30
The Loving opinion treated race as a monolithic and meaningful
category,31 even though the realities of the case itself subverted this
account. The litigation arose in Caroline County, Virginia, a place called
the “passing capital of America” because so many light-skinned blacks
were mistaken for whites.32 In addition, the Jeters made clear that
“Richard [wasn’t] the first white person in our family,” suggesting that
Mildred’s own racial background was complex.33
Complicated histories of race-mixing were reflected in the Virginia
statute itself. The law addressed matters of mixed ancestry expressly and
handled them differently depending on the racial groups involved.34
Blacks were defined under a rule of hypodescent so that “[e]very person
in whom there is ascertainable any Negro blood shall be deemed and
taken to be a colored person.”35 The law, however, included a
“Pocahontas exception” for the descendants of founding colonist John
Rolfe so that “persons who have one-sixteenth or less ‘of the blood of the
American Indian’” qualified as white.36 The law addressed the mixing of
blacks and Native Americans by concluding that “members of Indian
tribes existing in this Commonwealth having one fourth or more of
Indian blood and less than one sixteenth of Negro blood shall be deemed
tribal Indians.”37 The reality of race-mixing pervaded the statute’s
classification scheme.
In fact, the statute’s treatment of blacks and Native Americans
revealed another objection to any monolithic account of race.
Antimiscegenation laws arguably were disingenuous in their pursuit of
racial purity because they restricted only marriages between whites and
nonwhites. Meanwhile, marriages among nonwhite groups were wholly
29. McLaughlin, 379 U.S. at 188-96.
30. See ROBERT J. SICKELS, RACE, MARRIAGE, AND THE LAW 102-03 (1972); see
also Ariela R. Dubler, From McLaughlin v. Florida to Lawrence v. Texas: Sexual
Freedom and the Road to Marriage, 106 COLUM. L. REV. 1165, 1167-68 (2006)
(critiquing the popular view that McLaughlin was merely a stepping stone to Loving).
31. See Loving, 388 U.S. at 11-12.
32. SICKELS, supra note 30, at 76.
33. Id.
34. VA. CODE ANN. § 20-54 (1960).
35. Id. § 1-14.
36. Loving, 388 U.S. at 5 n.4 (quoting VA. CODE ANN. § 20-54) (explaining the
origins of the Pocahontas exception).
37. VA. CODE ANN. § 1-14.
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unregulated, although they posed comparable threats to the integrity of
racial categories.38 The Court concluded that “[it] need not reach this
contention because we find the racial classifications in these statutes
repugnant to the Fourteenth Amendment, even assuming an even-handed
state purpose to protect the ‘integrity’ of all races.”39
Whatever the evidence that racial categories were unreliable, the
Court was acutely aware of their importance in implementing school-
desegregation orders after the landmark decision in Brown v. Board of
Education.40 With the enactment of the Civil Rights Act of 1964,41
Congress had reinvigorated the Court’s quest for school integration, but
both judicial orders and agency enforcement depended on labeling
children according to race and then mandating school assignments that
promoted racial balance.42 The NAACP challenged the coherence of
racial categories in Loving, but its lawyers clearly recognized that the
classifications played an integral role in enforcing color-conscious
remedies. For that reason, NAACP attorneys—for the first time—
dropped the argument that all official uses of race were unconstitutional;
instead, the amicus brief simply emphasized specific deficiencies in
Virginia’s law.43
Rather than cast doubt on categories considered essential to
desegregation remedies, the Court chose to sidestep the issue altogether.
In doing so, it performed a delicate balancing act. The very idea of race
as a fixity, conferred at birth and immutable throughout a person’s
lifetime, derived from largely discredited biological accounts of racial
origins. The lower court in Loving had drawn on these theories by
invoking polygenesis, a theory of separate racial origins.44 The Virginia
judge observed that:
Almighty God created the races white, black, yellow, malay
and red, and he placed them on separate continents. And but for
the interference with his arrangement there would be no cause
38. Loving, 388 U.S. at 11-12 n.11.
39. Id.
40. 347 U.S. 483 (1954).
41. Pub. L. No. 88-352, 78 Stat. 241 (1964).
42. RACHEL F. MORAN, INTERRACIAL INTIMACY: THE REGULATION OF RACE AND
ROMANCE 99 (2001).
43. Id.
44. G. REGINALD DANIEL, MORE THAN BLACK?: MULTIRACIAL IDENTITY AND
THE NEW RACIAL ORDER 43 (2002).
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for such marriages. The fact that he separated the races shows
that he did not intend for the races to mix.45
Polygenesis, in turn, was closely linked to the eugenics movement,
which sought racial perfection by limiting miscegenation that would lead
to a mongrel breed.46 These theories had influenced the state of
Virginia’s decision to adopt the Racial Integrity Act in 1924 and
culminated in the horrors of Nazism and efforts to exterminate Jews as
an inferior people.47 The United States had waged a war to stop these
practices, so how could the Court now embrace classifications that
appeared to be a residue of this brand of racism?
Indeed, such a posture probably would have been exceedingly
awkward in the immediate aftermath of World War II. The 1948 decision
in Perez v. Sharp,48 in which the California Supreme Court became the
first and only state high court since Reconstruction to strike down an
antimiscegenation law as unconstitutional, confirms this view.49 Writing
for the majority, Justice Roger Traynor directly questioned the integrity
of racial classifications and concluded that California’s
antimiscegenation law was impermissibly vague.50 By relying on
categories proposed by Johann Friedrich Blumenbach in the early
nineteenth century, the legislature had “adopted one of the many systems
classifying persons on the basis of race,”51 which estimated the number
of races as anywhere “from three or four to thirty-four.”52 The high court
found these schemes so variable as to be questionable in themselves.
Yet, there was another serious problem as well:
Even if that hard and fast classification be applied to persons
all of whose ancestors belonged to one of these racial divisions,
the Legislature has made no provision for applying the statute
to persons of mixed ancestry. The fact is overwhelming that
there has been a steady increase in the number of people in this
45. Loving v. Virginia, 388 U.S. 1, 3 (1967); see also SICKELS, supra note 30,
at 80.
46. DANIEL, supra note 44, at 60-61.
47. WENDY KLINE, BUILDING A BETTER RACE: GENDER, SEXUALITY, AND
EUGENICS FROM THE TURN OF THE CENTURY TO THE BABY BOOM 103-04 (2001); Paul A.
Lombardo, Miscegenation, Eugenics,and Racism: A Historical Footnote to Loving v.
Virginia, 21 U.C. DAVIS L. REV. 421, 432-34, 437-40 (1988).
48. 198 P.2d 17 (Cal. 1948).
49. MORAN, supra note 42, at 84.
50. See Perez, 198 P.2d. at 22-25.
51. Id. at 27.
52. Id. (quoting Franz Boas, Race, in 7 ENCYCLOPEDIA OF THE SOCIAL SCIENCES
25, 26).
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country who belong to more than one race, and a growing
number who have succeeded in identifying themselves with the
Caucasian race even though they are not exclusively
Caucasian.53
Justice Traynor went on to note that the statute appeared to “permit[] a
substantial amount of intermarriage between persons of some Caucasian
ancestry and members of other races,” thus undermining the claim that
the legislature’s goal was to prevent the mixing of white and nonwhite
genotypes that led to biologically inferior offspring.54
The distinct approaches to racial classification schemes in Perez and
Loving are striking, and it seems clear that the dangers of eugenics and
Nazism weighed far more heavily on the California high court in 1948
than on the United States Supreme Court in 1967. Even so, anxieties
about the misuse of biological theories of racial inferiority persisted even
twenty years after the war.55 As a result, in recognizing the validity of the
categories, the Loving Court had to cleanse them of their pejorative
connotations. To that end, the Court linked its recognition of the
distinctions as descriptively meaningful to a normative claim that they
were legally irrelevant.56 The Court had already developed the notion
that race was a biological fixity and a constitutional irrelevancy in
Brown.57 Indeed, the Court’s reasoning went, precisely because race was
an immutable trait ascribed at birth, the law had to disregard a status that
had nothing to do with individual desert.58 Brown and its progeny,
however, had carefully confined this rhetoric’s application to the public
domain—spaces like schools, trains, buses, golf courses, and swimming
pools.59
A critical question was whether this rhetoric of biological
irrelevancy would have the same purchase in the private, intimate
domain of interpersonal relations. After all, laws proscribing interracial
sex and marriage had been used to preserve the color line.60 These
53. Id. at 27-28 (citation omitted).
54. Id. at 23.
55. See Mary Dudziak, Desegregation as a Cold War Imperative, 41 STAN. L.
REV. 61, 77-117 (1988) (describing the intense international scrutiny of civil rights in the
United States after World War II and before the Brown decision).
56. Loving v. Virginia, 388 U.S. 1, 11-12 (1967).
57. See Brown v. Bd. of Educ., 347 U.S. 483 (1954).
58. Cf. MORAN, supra note 42, at 7.
59. See id. at 88.
60. A. LEON HIGGINBOTHAM, JR., IN THE MATTER OF COLOR: RACE AND THE
AMERICAN LEGAL PROCESS: THE COLONIAL PERIOD 22-24 (Oxford 1980); Hrishi
Karthikeyan & Gabriel J. Chin, Preserving Racial Identity: Population Patterns and the
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statutes were designed to keep racial distinctions intact by defining
respectable sex and good families as same-race.61 Now, the Court
appeared to be saying that race could remain a fixity, even as sex and
marriage ceased to be the bulwarks for policing racial difference.
To some extent, the Court had already imported the rhetoric of
colorblindness into the regulation of intimate relationships in
McLaughlin.62 Even so, that decision emphasized not the sexual
liberation of the defendants, but the need for an even-handed criminal
justice system.63 In fact, the case did nothing to validate sex outside of
marriage, and Florida’s ban on interracial marriage remained in place.64
After the Supreme Court victory, Dewey McLaughlin and Connie
Hoffman could still be prosecuted for adultery (though without the
heightened penalty), and they had no way to make their sexual
relationship legal through marriage in Florida.65
Loving, by contrast, conferred constitutional protections on
interracial intimacy. The Court adopted McLaughlin’s approach to
equality by striking down the Virginia law because it criminalized
interracial but not same-race marriages.66 States could no longer use the
power of the law to prevent race-mixing. Moreover, with the exception
of Justice Stewart,67 the Court went even further than a formal analysis of
racial equality would permit. In extending Brown’s norm of
colorblindness from public spaces to the intimate domain of marriage,
the Court echoed Traynor’s view in Perez that “[t]he right to marry is as
fundamental as the right to send one’s child to a particular school or the
right to have offspring.68 Although Chief Justice Warren did not discuss
Perez at any length, he likely was quite familiar with this decision by a
distinguished jurist from his home state of California.69
Application of Anti-Miscegenation Statutes to Asian Americans, 1910-1950, 9 AS. L.J. 1,
19-31 (2002).
61. MORAN, supra note 42, at 17-18, 61.
62. See McLaughlin v. Florida, 379 U.S. 184, 191-93 (1964).
63. See id. at 193-94.
64. See id. at 195.
65. There is evidence that Dewey McLaughlin and Connie Hoffman would not
have been able to marry in any event because they were still married to other people at
the time they were prosecuted. Yet, even divorce would not have freed them to legitimate
their relationship through a trip to the altar. Dubler, supra note 30, at 1171.
66. Loving v. Virginia, 388 U.S. 1, 10-12 (1967).
67. See id. at 13 (Stewart, J. concurring).
68. Perez v. Sharp, 198 P.2d 17, 19 (Cal. 1948); accord Loving, 388 U.S. at 11.
69. Indeed, Chief Justice Warren singled out the California decision in a
footnote in the Loving opinion. 388 U.S. at 6 n.5. For a discussion of whether Perez
influenced Chief Justice Warren’s analysis, see R.A. Lenhardt, The Story of Perez v.
Sharp: Forgotten Lessons on Race, Law, and Marriage, in RACE LAW STORIES (Rachel F.
Moran & Devon Carbado eds., forthcoming 2008).
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Like Justice Traynor, Chief Justice Warren moved beyond a
discourse of racial justice rooted exclusively in equality by linking this
value expressly to liberty. Even after Chief Justice Warren was forced to
trim the discussion of due process, his linking of equality and liberty in
Loving was noteworthy and stood in marked contrast to critiques of
Brown that pitted the two values against each other. According to leading
constitutional scholar Professor Herbert Wechsler, for example, the
Court advanced equality for blacks through school desegregation by
divesting whites of the freedom to associate with persons of their own
choosing.70 Loving afforded an opportunity for the Court to refute the
claim that liberty and equality operated at cross-purposes in its racial
jurisprudence. Indeed, the opinion seemed to suggest that authentic
liberty would require an end to invidious racial distinctions. At the same
time, true marital freedom might undercut the very distinctions that
created racial hierarchy.
B. The Meaning of Marriage
In striking down antimiscegenation laws, the Loving Court took the
prevailing definition of marriage for granted. In many ways, the facts of
the case made this easy. With the exception of their race, Richard Loving
and Mildred Jeter told a very conventional love story. They had grown
up together in Caroline County and began their courtship when Richard
was seventeen and Mildred was eleven.71 Mildred described Richard as
the only man she had ever loved,72 and Richard asked his attorneys to
“tell the [C]ourt I love my wife.”73 In recognizing the Lovings’ right to
marry as fundamental, the Court emphasized the longstanding role of
marriage in a well-ordered society.74
Yet, even as the Court painted this unchanging picture of love and
marriage, newfound social pressures had been testing the boundaries of
interracial intimacy. The war effort placed men and women alike in
novel environments. On the home front, women were enlisted to work in
wartime factories, and blacks and whites sometimes found themselves in
the same plants.75 Andrea Perez and Sylvester Davis met while they were
70. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73
HARV. L. REV. 1, 34 (1959).
71. Robert A. Pratt, Crossing the Color Line: A Historical Assessment and
Personal Narrative of Loving v. Virginia, 41 HOW. L.J. 229, 235 (1998).
72. Id. at 244.
73. PETER WALLENSTEIN, TELL THE COURT I LOVE MY WIFE: RACE, MARRIAGE,
AND LAW—AN AMERICAN HISTORY 6 (2002).
74. See Loving, 388 U.S. at 12.
75. RENEE C. ROMANO, RACE MIXING: BLACK-WHITE MARRIAGE IN POSTWAR
AMERICA 12-14 (2003).
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working in the defense industry in Los Angeles.76 Their romance
blossomed beyond the watchful eyes of their families, particularly the
Perez parents.77 The couple saw marriage as a natural outcome of the
love they had come to feel for one another. The lawsuit they filed, Perez
v. Sharp, would make history, but they considered themselves ordinary
people who simply wanted to spend their lives together.78 Even more
than fifty years later, Sylvester Davis would say that he still did not
understand what all the fuss was about.79
Abroad, black servicemen had opportunities to date across the color
line during World War II.80 The military was forced to prepare training
films, such as Welcome to Britain, which alerted white soldiers that
[t]here are colored soldiers as well as white here and there are
less social restrictions in this country. . . . You heard an
Englishwoman asking a colored boy to tea. She was polite
about it and he was polite about it. Now . . . look; that might
not happen at home but the . . . point is, we’re not at home, and
the point is too, if we bring a lot of prejudices here what are we
going to do about ’em?81
Meanwhile, the War Department struggled to keep interracial
intimacy abroad from turning into marriages that might be considered
miscegenous back home.82 General Dwight D. Eisenhower worried about
“black troops because they were running off with English girls.”83
Eisenhower sought to preserve the distinction between political rights
and social rights for blacks, noting that he believed in equal rights but not
where “women and liquor” were concerned.84 Soldiers who wanted to
marry their overseas sweethearts had to apply for permission from the
military.85 Commanding officers regularly denied approval to interracial
76. See Dara Orenstein, Void for Vagueness: Mexicans and the Collapse of
Miscegenation Law in California, 74 PAC. HIST. REV. 367, 367-68 (2005).
77. See id. at 374-75.
78. See id. at 406-07.
79. See id. at 394.
80. ROMANO, supra note 75, at 18-21.
81. ALEX LUBIN, ROMANCE AND RIGHTS: THE POLITICS OF INTERRACIAL
INTIMACY, 1945-1954, at 99 (2005).
82. See id. at 99-101.
83. Id. at 100 (quoting NAT BRANDT, HARLEM AT WAR: THE BLACK EXPERIENCE
IN WORLD WAR II 106 (1996)).
84. Id.
85. See id. at 101.
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2007:239 Legacy of Unintended Consequences 251
couples whose marriages would violate antimiscegenation laws in the
United States.86
Black enlisted men and their fiancées sent letters to the NAACP
complaining about the military’s refusal to sanction the marriages.87
Although “the NAACP was reluctant to make the politics of interracial
marriage central to it[s] civil rights mission at home, it was more than
willing to advocate black GIs’ right to intermarriage abroad.”88 The black
press also took up the cause.89 In the decade following the war, magazine
and newspaper articles regularly covered interracial romances of black
GIs in Europe, in part to highlight the ironies of a war waged to end
racism overseas while segregation persisted at home.90
Wartime accounts of interracial love and marriage unsettled but did
not eliminate stereotyping and racial hierarchy. The black press treated
soldiers’ interracial romances with European and Japanese women very
differently.91 Preoccupied with the injustice of antimiscegenation laws
rooted in a belief in white supremacy, newspapers and magazines used
relationships with European women to demonstrate the desirability and
even superiority of black men.92 Relationships with Japanese women did
not have the same strategic punch in battling the legacy of Jim Crow, and
in many ways, racism inflected perceptions of Asian women.93 In some
cases, they were portrayed as sexually promiscuous: “If you will check
on the birth rate in Japan, you will find that most of the girls of Japan are
very sexually overtrained. The birth rate is one of the highest in the
world. . . . I really cannot believe most of those rape cases [involving
black soldiers and Japanese women], if so, are on the soldiers’ part.”94
Even articles that accepted Japanese women as legitimate war brides
often emphasized their docility and servility.95 One GI described how
“my wife waits on me hand and foot, gives me a massage when I come
home from work, washes my back in hot water and turns down the bed
so I can take a nap before dinner.”96
Black women were largely missing in these accounts.97 Both the
NAACP and the black press emphasized the constraints on black males’
86. Id.
87. See id. at 102.
88. Id. at 107.
89. See id.
90. See id. at 109.
91. See id. at 108.
92. Id. at 110-13.
93. See id. at 114.
94. Id. at 116 (quoting Private Frank Topsail).
95. See id. at 117.
96. Id.
97. See id. at 118.
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252 WISCONSIN LAW REVIEW
ability to marry across the color line, while black women’s voices were
heard primarily through occasional letters to the editor.98 There was little
attention to how stories of intermarriage might cast doubt on the
desirability of black women by exalting the beauty of European wives
and the docility of Asian ones.99 In this, the black press mirrored a larger
American culture that prized a certain kind of masculine freedom. There
was little concern that intermarriage would empower black men but have
ambiguous consequences for black women.
A culture of intimacy predicated on masculine freedom persisted
after the war. Returning white veterans received government subsidies to
help them get a college education, purchase a house in the suburbs, and
earn the wherewithal to get married and start a family.100 Meanwhile,
women, particularly middle-class white women, found themselves
leaving the workplace, forgoing education, and devoting themselves to
being wives and mothers.101 Ultimately, the quest to empower white men
after World War II would lead to segregation and sexual conservatism in
the 1950s. The sexual and marital experimentation of the war was
supplanted by an intensely traditional domesticity that idealized a male
breadwinner with a wife and two children in a home in white suburbia.
Residential segregation ensured that families would be separate and only
nominally equal.102
The staid sexual and marital respectability of the 1950s could not
withstand the turmoil of the 1960s and 1970s. The rise of geographic
mobility and the growth in higher education laid the foundation for a
youthful independence that would transform the landscape of sex and
marriage in America.103 The baby boomers enjoyed unparalleled freedom
from the constraints of family and community as they moved around the
country in pursuit of opportunity.104 By the time the Court decided
Loving, both the civil rights and sexual liberation movements were
98. See id.
99. See id. at 118-21.
100. NANCY COTT, PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE NATION
189-91 (2000); SUSAN M. HARTMANN, THE HOME FRONT AND BEYOND: AMERICAN
WOMEN IN THE 1940S 163-70 (2003); Gretchen Ritter, Of War and Virtue: Gender,
American Citizenship, and Veterans’ Benefits After World War II, in COMPARATIVE
STUDY OF CONSCRIPTION IN THE ARMED FORCES 201-26 (Lars Mjoset and Stephen Van
Holde eds. 2002).
101. ALICE KESSLER-HARRIS, OUT TO WORK: A HISTORY OF WAGE-EARNING
WOMEN IN THE UNITED STATES 295-99 (20th Anniversary ed. 2003).
102. KLINE, supra note 47, at 152-56; ROMANO, supra note 75, at 27-28.
103. Michael J. Rosenfeld & Byung-Soo Kim, The Independence of Young
Adults and the Rise of Interracial and Same-Sex Unions, 70 AM. SOC. REV. 541, 542-43
(2005).
104. Id. at 543.
MORAN FINAL 10/26/2007 11:52 AM
2007:239 Legacy of Unintended Consequences 253
underway.105 In light of these changes, Chief Justice Warren’s opinion
might have construed the drive to dismantle antimiscegenation laws as a
way to revisit the conventional meaning of marriage, but the Court did
not choose this path. Instead, it opted to take marriage as a given, a
longstanding institution with a flaw where race was concerned.
This approach in part reflected the Court’s need to make
unenumerated rights appear solidly entrenched in tradition if not in the
Constitution itself. Marriage was not expressly mentioned as a
fundamental right, but its protected status could be fairly inferred if it
enjoyed an unquestionably privileged historical status. In addition,
Loving’s failure to interrogate marriage may have reflected the
assimilative impulse of the civil rights movement itself. Driven by black
elites, the NAACP’s desegregation campaign was designed to eliminate
racial barriers to the American dream, not to question that dream.106
Privileged blacks were not sexual radicals; they wanted the bourgeois
conventions of marriage but without the racial hierarchy.107 A traditional
love story about courtship and marriage was precisely what both activists
and the Court wanted, and the Lovings gave them just that—even down
to their last name.
C. A Domestic Paradigm of Race and Intimacy
There is one other assumption in Loving that runs so deep that it
remains largely invisible. Romance and marriage happen between
Americans; love with a proper stranger does not include the foreign-
born. In Loving, the Court referred to the rights of citizens in both its
equal protection and due process analyses, even though these protections
are afforded to persons. In part, this preoccupation with the rights of
citizenship derived from Brown’s legacy. That decision was part of an
effort to rehabilitate federal citizenship after a series of decisions emptied
it of meaning, brought Reconstruction to a close, and ushered in an era of
Jim Crow segregation.108 The Court’s focus also reflected the facts of the
105. MORAN, supra note 42, at 91-92.
106. Cf. Dubler, supra note 30, at 1186.
107. See Michele Mitchell, Silences Broken, Silences Kept: Gender and
Sexuality in African-American History, 11 GENDER & HISTORY 433, 437-38 (1999)
(describing the “politics of respectability” that emerged in the African-American
community in the late 1800s and early 1900s).
108. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873); The Civil Rights
Cases, 109 U.S. 3 (1883). For a discussion of how these cases undermined federal
citizenship and sounded the death knell for Reconstruction, see PHILIP A. KLINKNER WITH
ROGERS M. SMITH, THE UNSTEADY MARCH: THE RISE AND DECLINE OF RACIAL EQUALITY
IN AMERICA 72-135 (1999); Rebecca Zietlow, Congressional Enforcement of Civil Rights
and John Bingham’s Theory of Citizenship, 36 AKRON L. REV. 717, 746-52 (2003).
MORAN FINAL 10/26/2007 11:52 AM
254 WISCONSIN LAW REVIEW
case. The Lovings, except for their conviction for marrying across the
color line, were as American as apple pie. Born and bred in the United
States, there was no evidence that they had ever traveled abroad. In fact,
the couple reluctantly left Virginia for the District of Columbia only
upon threat of jail time.109 The Lovings filed their lawsuit in part because
they wanted to go home to Caroline County. There was nothing foreign
about their romance.
Even so, the Court had earlier intimations that love and marriage
could cross national boundaries. In the mid-1950s, the Warren Court
confronted the case of Naim v. Naim,110 in which a Chinese seaman had
married a white woman in North Carolina before the couple returned to
Virginia.111 After Congress eliminated restrictions that barred Asians
from naturalizing, Naim believed that he could use his marriage to an
American woman as a way to apply for United States citizenship.112
Fifteen months after the wedding, however, his “wife filed for an
annulment on the ground that Virginia did not recognize interracial
marriages.”113 Naim asked the state court to recognize his marriage as
valid under North Carolina law; his petition for an immigrant visa hung
in the balance.114
Despite the high stakes for Naim, the Supreme Court ultimately
evaded the question by claiming that it lacked jurisdiction to hear the
case.115 As a result, the Court let stand the Virginia high court’s decision
that the marriage was void.116 Later, the Court justified its failure to
intervene in Naim as necessary to preserve the viability of the school
desegregation initiative launched in Brown.117 One Justice summed up
the situation succinctly: “One bombshell at a time is enough.”118 Chief
Justice Warren felt deeply frustrated by the Court’s posturing in Naim.119
Although Mildred and Richard Loving were Americans by birth, Chief
Justice Warren was unlikely to forget the deep injustice done to this
109. See supra notes 5-8 and accompanying text.
110. 350 U.S. 891 (1955), appeal reconsidered, 350 U.S. 985 (1956).
111. MORAN, supra note 42, at 89.
112. See id.
113. Id.
114. See id.; Peter Wallenstein, Race, Marriage, and the Law of Freedom:
Alabama and Virginia, 1860s-1960s, 70 CHI.-KENT L. REV. 371, 416-17 (1994).
115. MORAN, supra note 42, at 90.
116. 350 U.S. at 985.
117. WALTER F. MURPHY, ELEMENTS OF JUDICIAL STRATEGY 193 (1964).
118. Id.; see also WALLENSTEIN, supra note 73, at 418-19 (“[T]o throw a
decision of this Court other than validating this legislation into the vortex of the present
disquietude would . . . seriously, I believe very seriously, embarrass the carrying out of
the Court’s decree of last May [in Brown].” (quoting Justice John Marshall Harlan)).
119. CRAY, supra note 19, at 451.
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2007:239 Legacy of Unintended Consequences 255
Chinese seaman, who lost his wife and his chance for citizenship at the
same time.
The Court had an even more recent reminder of the links between
interracial intimacy and national origin in McLaughlin.120 McLaughlin
did not seem to accept the traditional notions of race that the Florida
police officers had used to classify him as black. In fact, McLaughlin’s
complex notions of race, brought with him from Latin America, may
have made crossing the color line seem ordinary rather than exceptional.
Indeed, these notions may have made it hard to locate the color line at
all.121
Eventually, changes in the make-up of new immigrants would make
it increasingly difficult to ignore such alternative views of race. One year
after the Court struck down McLaughlin’s conviction and two years
before Loving, Congress revised the immigration laws in ways that led to
substantial growth in the number of arrivals from Asia and Latin
America.122 These newcomers disrupted conventional ideas about race
predicated on an assumption that Americans were either black or
white.123 Yet, because Loving involved native-born Americans who
apparently acquiesced in traditional racial distinctions, these pressures
were nowhere to be found in the Court’s opinion. Indeed, they would not
become salient until much later.124
With Mildred Jeter and Richard Loving clamoring for the right to
wed, the Court accepted an American model of intimacy built on
marriage and the nuclear family. Global challenges to this model were
obscured, even as the number of immigrants continued to rise after 1965.
Marriage was no protection against the ravages of migration, which
separated husbands from wives and parents from children.125 Migrants
often depended on alternative arrangements to buffer them against
emotional and economic uncertainty. Extended families in the home
120. 379 U.S. 184 (1964).
121. See R
AFAEL PEREZ-TORRES, MESTIZAJE: CRITICAL USES OF RACE IN
CHICANO CULTURE 4-11 (2006).
122. See Pub. L. 89-236, 79 Stat. 911 (1965) (codified as amended at 8 U.S.C.
§§ 1151-1152 (2000)) (amending the Immigration and Nationality Act).
123. Jennifer Lee & Frank D. Bean, America’s Changing Color Lines:
Immigration, Race/Ethnicity, and Multiracial Identification, 30 ANN. REV. SOC. 221, 222
(2004).
124. Deborah Ramirez, Multicultural Empowerment: It’s Not Just Black and
White Anymore, 47 STAN. L. REV. 957, 960-62 (1995) (noting that during the 1960s and
1970s, only one out of every ten Americans identified as nonwhite, nearly all of whom
were black; in the 1990s, as a result of intermarriage and immigration, one out of four
Americans identified as nonwhite, and only half of these were black).
125. Pierrette Hondagneu-Sotelo & Ernestine Avila, “I’m Here, but I’m There”:
The Meanings of Latina Transnational Motherhood, 11 GENDER & SOC. 548, 552-53
(1997).
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country cared for spouses and offspring left behind.126 Newcomers with
limited wealth, education, and income regularly turned to networks of
friends and acquaintances for support as migration disrupted family
ties.127 For these new arrivals, marriage and the nuclear family clearly
did not function as a “haven in a heartless world.”128 Despite these
intrusions on the freedom to forge intimate ties, the complications posed
by migration were absent from Loving and remain invisible in much of
today’s discourse on intimacy across national borders. We still think
about love American-style.
III. UNDOING TRADITIONAL ASSUMPTIONS: THE UNINTENDED
CONSEQUENCES OF LOVING
Because Loving took so much for granted, the case has had a
number of unintended consequences with respect to race and intimacy.
Some constituencies have laid claim to the decision and its legacy in
ways that might well have taken the Justices by surprise. Yet, the
decision has had other effects, sometimes not as fully appreciated but at
least as important. At times, these unintended consequences have
subverted Loving’s traditional assumptions. As a result, the decision
bears a complicated relationship to current discussions of race and
equality; the meaning of marriage as well as other intimate attachments;
and domestic constructions of sex, marriage, and family in the face of
rising immigration.
A. New Frontiers in Race: Multiracialism and Colorblind Segregation
In the area of race, the self-proclaimed heirs of Loving are
proponents of multiracialism. In their view, the Court’s decision resulted
in a new generation of mixed-race children, who challenge conventional
notions of race that the Court took for granted. At the same time, there is
126. See, e.g., id.; Rhacel Salazar Parreñas, The Care Crisis in the Philippines:
Children and Transnational Families in the New Global Economy, in GLOBAL WOMAN:
NANNIES, MAIDS, AND SEX WORKERS IN THE NEW ECONOMY 39, 49-52 (Barbara
Ehrenreich & Arlie Russell Hochschild eds., 2004).
127. See, e.g., Douglas S. Massey, The Social Organization of Mexican
Migration to the United States, 487 ANNALS 102, 104-06 (1986); Norma Chinchilla &
Nora Hamilton, Changing Networks and Alliances in a Transnational Context:
Salvadoran and Guatemalan Immigrants in Southern California, SOC. JUST., Fall 1999, at
4, 10-11.
128. CHRISTOPHER LASCH, Introduction to HAVEN IN A HEARTLESS WORLD: THE
FAMILY BESIEGED xiii (1977). Indeed, Lasch questions whether marriage and family have
succeeded in insulating Americans from the hardships of impersonal public life. Id. at
xvii-xviii.
MORAN FINAL 10/26/2007 11:52 AM
2007:239 Legacy of Unintended Consequences 257
a less recognized but at least as significant legacy of the case, one that
turns on the persistence of same-race marriages and families. Loving was
the first decision to embrace a formal norm of colorblindness that was
indifferent to whether integration resulted. As in Brown, the Court
declared a right to be free of discrimination by striking down
antimiscegenation laws, which were vestiges of a racial caste system. In
contrast to the desegregation lawsuits, however, officials were not
required to foster interracial interrelationships because these efforts
would interfere with marital freedom. As a consequence, Loving
arguably ushered in an era of colorblind segregation.
1. THE MIXED PROMISE OF MULTIRACIALISM
In laying claim to Lovings legacy, proponents of multiracialism do
not treat race as irrelevant. Focusing on growing rates of intermarriage,
they insist that racial classification schemes must change to reflect a new
multiracial reality. In June 1992, the Association of Multi-Ethnic
Americans (AMEA) held a conference on Loving in Washington, D.C. to
commemorate the decision’s twenty-fifth anniversary.129 AMEA invited
government officials to the event in hopes of drawing attention to
demands to change the United States Census Bureau’s method of
collecting information about race.130 Working with organizations like
Project RACE (Reclassify All Children Equally), the AMEA eventually
persuaded Congress and census officials to recognize “the children of
Loving.”131 Although some advocates like Susan Graham of Project
RACE wanted a separate multiracial classification because her children
were not “check all that apply,” officials instead chose to let individuals
mark more than one race on the 2000 census, just as they could designate
more than one ethnicity.132 The Census Bureau adopted this strategy to
preserve civil rights enforcement regimes and to enable social science
researchers to draw some meaningful comparisons with data on race
gathered in earlier decennial periods.133
The 2000 census data reveal that 7.3 million, or 2.6 percent, of the
population chose two or more races to identify themselves.134 Of those,
129. See KIM M. WILLIAMS, MARK ONE OR MORE: CIVIL RIGHTS IN MULTIRACIAL
AMERICA 21 (2006).
130. See id.
131. See id. at 42-44; MORAN, supra note 42, at 9-10, 160-65.
132. Frank James, Panel Rejects Pleas to Add “Multiracial” as Official
Category, CHI. TRIB., July 9, 1997, at 3.
133. WILLIAMS, supra note 129, at 58-60; MORAN, supra note 42, at 162-65.
134. NICHOLAS A. JONES, U.S. CENSUS BUREAU, U.S. DEPT OF COMMERCE,
CENSUS 2000 SPECIAL REPORTS 22, WE THE PEOPLE OF MORE THAN ONE RACE IN THE
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the overwhelming majority selected white along with at least one other
designation.135 Those reporting more than one race tended to be younger
than average;136 Latinos and the foreign-born were overrepresented;137
and the mixed-race population was regionally concentrated in Hawaii
and states like California with high levels of urbanization and large
immigrant populations.138 The youthfulness of the population139 along
with steadily increasing intermarriage rates indicate that the proportion
of individuals reporting two or more races will grow.
Although proponents of multiracialism have attributed the push for
a new category to the rise of intermarriage after Loving, the picture is
more complicated than that. As the statistics on those who report more
than one race make clear, immigrants have arrived in the United States
with distinct racial ideologies that influence how they identify
themselves. It is no accident that Latinos and the foreign-born are
disproportionately represented among those who mark two or more
races. With the rise in the Latino population, some scholars have
predicted a “Latin Americanization” of race relations that will treat
mestizaje (or race-mixing) as ordinary rather than exceptional.140
The influence of alternative approaches to race may lead to changes
in the way that native-born Americans identify themselves. For instance,
the rule of hypodescent, which treats a person as black if he or she has
any African ancestry, is an exceptional approach to racial identification
that is largely limited to the United States.141 Historically, this rule has
concealed a great deal of racial complexity. In 1991, F. James Davis
wrote that “[a]t least three-fourths of all people defined as American
blacks have some white ancestry, and some estimates run well above 90
percent. . . . In terms of gene frequencies, apparently somewhere between
UNITED STATES 1 (2005), available at http://www.census.gov/prod/2005pubs/censr-
22.pdf.
135. Id. at 4.
136. See id. at 6.
137. See id. at 7, 10.
138. NICHOLAS A. JONES & AMY SYMENS SMITH, THE TWO OR MORE RACES
POPULATION: 2000 at 2-6 (2001), available at
http://www.census.gov/prod/2001pubs/c2kbr01-6.pdf.
139. See JONES, supra note 134, at 5-6.
140. See Eduardo Bonilla-Silva & David G. Embrick, Black, Honorary White,
White: The Future of Race in the United States?, in MIXED MESSAGES: MULTIRACIAL
IDENTITIES IN THE “COLOR-BLIND ERA 33, 46-47 (David L. Brunsma ed., 2006); Eduardo
Bonilla-Silva, From Bi-Racial to Tri-Racial: Towards a New System of Racial
Stratification in the USA, 27 ETHNIC & RACIAL STUD. 931, 942-44 (2004).
141. F. James Davis, Defining Race: Comparative Perspectives, in M
IXED
MESSAGES: MULTIRACIAL IDENTITIES IN THE “COLOR-BLIND ERA, supra note 140, at 15,
16; Rainier Spencer, Assessing Multiracial Identity: The Challenge of Hypodescent, 4
ETHNICITIES 357, 361-62 (2004).
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2007:239 Legacy of Unintended Consequences 259
one-fifth and one-fourth of the genes of the American black population
are from white ancestors.”142
Indeed, in an earlier era, census takers used an elaborate system to
classify blacks of mixed ancestry based on physical appearance. In 1870
and 1880, the census added a category for the “mulatto,” and in 1890,
enumerators were asked to distinguish among “mulattoes,” “quadroons,”
and “octoroons.”143 These distinctions eventually disappeared, and
monoracial categories became the rule.144 Individuals once labeled as
mulatto, quadroon, or octoroon simply became black.145 Even after 1970,
when individuals were allowed to self-identify on the basis of race,
blacks continued to use this monoracial label.146
Proponents of multiracialism like Graham have focused on children,
like her own, who are the product of recent intermarriage.147 Yet, some
civil rights leaders have worried that blacks with some remote white
ancestry will opt to self-identify as multiracial to escape the stigma of a
devalued racial identity.148 Arthur A. Fletcher, former chairperson of the
U.S. Commission on Civil Rights, predicted that
a whole host of light-skinned Black Americans [will be]
running for the door the minute they have another choice. And
it won’t necessarily be because their immediate parents are
Black, White, or whatever, but all of a sudden they have a way
of saying—in this discriminatory culture of ours, they have
another way of saying, “I am something other than Black.”149
At least in the initial iteration on the 2000 census, these fears have
not materialized. The black population increased slightly from 12.1
percent in 1990 to 12.3 percent in 2000.150 On the 2000 census, over 34.5
million self-identified as black,151 while a little over 1.5 million reported
142. F. JAMES DAVIS, WHO IS BLACK?: ONE NATIONS DEFINITION 21 (1991).
143. MORAN, supra note 42, at 160-61.
144. See id. at 161.
145. See id.
146. Id.
147. See id. at 166.
148. See id.; WILLIAMS, supra note 129, at 47-48.
149. MORAN, supra note 42, at 166 (quoting Review of Federal Measurements of
Race and Ethnicity: Hearings Before the Subcomm. on Census, Statistics and Postal
Personnel of the H. Comm. on Post Office and Civil Service, 103d Cong. 273 (1993)
(statement of Arthur A. Fletcher)).
150. FRANK HOBBS & NICOLE STOOPS, U.S. CENSUS BUREAU, U.S. DEPT OF
COMMERCE, CENSUS 2000 SPECIAL REPORTS 4, DEMOGRAPHIC TRENDS IN THE 20TH
CENTURY 77 (2002), available at http://www.census.gov/prod/2002pubs/censr-4.pdf.
151. Id. at A-30 tbl.9.
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a mixed-race identity that included black ancestry.152 Of those who
reported mixed origins, slightly over 900,000 indicated some white
ancestry as well.153 Prominent individuals like Tiger Woods and Barack
Obama, both products of recent intermarriage, have made public their
mixed ancestry.154 It remains to be seen whether their multiracial
backgrounds will inspire other blacks to embrace their own mixed-race
origins, even if their white ancestry is remote.
This brings us to a profound irony of Loving’s multiracial legacy.
The case treated race as a fixity and a biological irrelevancy, but
multiracialism unsettles these assumptions. Proponents of a multiracial
category do not consider race a given; they believe that classification
schemes can change in response to new social conditions. Moreover,
advocates of multiracialism do not treat racial identification as irrelevant
to a sense of self-worth and belonging. For them, official recognition of
multiracialism is essential to prevent the harms that come from an
identity distorted by monoracial labels. In asserting that census
classifications can be altered, the multiracial movement makes clear that
law and politics profoundly shape collective perceptions of race.155
At the same time, though, multiracialism treats race as a function of
genotype.156 As a result, race’s status as a natural biological fact is
entrenched.157 A recent PBS television special, hosted by Professor
Henry Louis Gates of Harvard University, illustrates this dynamic.158
Professor Gates interviewed a number of black celebrities about their
family history for the documentary.159 Through these conversations, it
became clear that each family had told stories about overcoming the
hardships of racism.160 This portion of the show suggested that race was
not an immutable and inescapable biological trait, but part of a richly
152. See JONES, supra note 134, at 1 tbl.1.
153. See id.
154. Jennifer Senior, Dreaming of Obama, NEW YORK MAG., Oct. 2, 2006, at 28,
32-38; Gary Kamiya, Cablinasian Like Me, SALON, Apr. 30, 1997,
http://www.salon.com/april97/tiger970430.html. It is worth noting that in labeling
himself “Cablinasian” rather than black, Tiger Woods also characterized his father as
multiracial (that is, black, white, and Native American). See id.
155. WILLIAMS, supra note 129, at 29-37 (describing how the multiracial
movement exemplifies the politics of race as a social and legal construct).
156. See RAINIER SPENCER, CHALLENGING MULTIRACIAL IDENTITY 70 (2006).
157. See id.; Rainier Spencer, New Racial Identities, Old Arguments: Continuing
Biological Reification, in MIXED MESSAGES: MULTIRACIAL IDENTITIES IN THE “COLOR-
BLIND ERA, supra note 140, at 83, 85-86, 92-96; Spencer, supra note 141, at 369-74.
158. African-American Lives (PBS television broadcast Feb. 1 and 8, 2006).
159. Id.
160. Id.
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2007:239 Legacy of Unintended Consequences 261
woven intergenerational tale of resiliency, ingenuity, and will.161 Next,
the celebrities were asked to provide samples for DNA testing.162 Then,
Professor Gates informed each one of the results and watched as his
high-profile guests grappled with surprising information about a mixed
racial heritage.163 Here, race had once again become fixed, a biological
given, scientifically determined in the genes.164 With these test results,
the solidarity of family stories about blackness seemed to give way to an
authoritative statement that the whole multiracial story had not been told.
The show epitomized the dilemma of multiracialism: it offers the
promise that we can all get beyond race but also sends a subtle message
that race is inescapably inscribed in our bodies no matter how we label it.
2. THE RISE OF COLORBLIND SEGREGATION
Before Loving, the Court’s pronouncement that race should be
irrelevant to government decisionmaking was not a legal abstraction but
a prelude to the imposition of desegregation remedies. In public schools,
for example, corrective justice required federal court oversight to ensure
that the vestiges of past discrimination were “eliminated root and
branch,” so that schools ceased to be racially identifiable.165 In Loving,
however, the Court paired a principle of racial equality with a liberty
interest in marriage.166 As a result, the Court declared a right to be free of
discrimination by striking down antimiscegenation laws, but officials
were not obligated to foster interracial relationships because these efforts
would interfere with personal freedom. There was no chance that Loving
would lead to “a state-run interracial dating service.167
In the wake of the decision, attitudes toward intermarriage gradually
changed. Today, most Americans accept the legitimacy of interracial
relationships.168 In addition, rates of intermarriage have increased
161. See id.; Troy Duster, Deep Roots and Tangled Branches, CHRON. HIGHER
EDUC., Feb. 3, 2006, at 13; John Leonard, Black Like Me?, N.Y. MAG., Feb. 6, 2006, at
73.
162. African-American Lives, supra note 158.
163. Id.
164. Duster, supra note 161, at 13; see also Darryl Fears, Out of Africa—But
From Which Tribe?, WASH. POST, Oct. 19, 2006, at A3 (reporting on doubts about the
utility of mitochondrial DNA testing to determine tribal ancestry among blacks; this was
the technique employed in the PBS special African American Lives).
165. See, e.g., Green v. County Sch. Bd., 391 U.S. 430, 437-38 (1968); Swann v.
Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971).
166. Loving v. Virginia, 388 U.S. 1, 11-12 (1967).
167. MORAN, supra note 42, at 8.
168. See Sharon M. Lee & Barry Edmonston, New Marriages, New Families:
U.S. Racial and Hispanic Intermarriage, POPULATION BULL., June 2005, at 3, 3.
According to a 1993 Gallup poll, 86 percent of blacks, 79 percent of Hispanics, and 66
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262 WISCONSIN LAW REVIEW
steadily from “less than 1 percent of all married couples in 1970 to more
than 5 percent of couples in 2000.”169 Despite this overall growth, whites
and blacks have substantially lower rates of outmarriage than Native
Americans, Asian Americans, Hawaiians, or Latinos. The rate of
intermarriage rose from 0.4 percent in 1970 to 2.7 percent in 2000 for
whites, from 1.1 percent to 7.0 percent for blacks, and from 37.6 percent
to 56.7 percent for Native Americans.170 As for Latinos, the rate of
intermarriage with spouses of non-Hispanic origin remained constant at
13 to 14 percent during this period.171 Intermarriage rates declined
slightly from 19.9 percent to 16.0 percent for Asians and from 50.1
percent to 45.6 percent for Hawaiians, but outmarriage still remained
relatively common.172
In spite of these increases, married couples are still overwhelmingly
of the same race.173 Even though segregated marital patterns persist, no
one has questioned Loving’s status as a resounding civil rights victory.
For racial reformers, Loving represents the dismantling of the final and
most resistant feature of Jim Crow: the ban on intimacy across the color
line. For conservatives, the decision fits neatly with an insistence on
colorblindness. As a result, neither constituency has been inclined to
doubt Loving’s success. Indeed, the decision seems to be above the fray,
even as disputes intensify about the ongoing legitimacy of color-
conscious remedies like affirmative action.174
Scholars have failed to recognize that Loving was the first modern
civil rights decision to treat colorblindness and segregation as compatible
concepts. Indeed, the case arguably was a harbinger of the colorblind
segregation that would undo Brown’s legacy and convert racial
jurisprudence into a largely formalistic exercise.175 In later opinions, the
Court has insisted that any consideration of race is pernicious and so has
percent of whites expressed their acceptance of interracial relationships. See id. Overall,
77 percent were open to black-white dating. See id. Only 10 percent supported
antimiscegenation laws. See id. By contrast, a 1958 Gallup poll showed that only 4
percent of white Americans approved of intermarriage between blacks and whites.
KENNEDY, supra note 3, at 88.
169. Lee & Edmonston, supra note 168, at 7, 11.
170. See id. at 12 & tbl.2.
171. See id. at 25 & tbl.6.
172. See id. at 12 & tbl.2.
173. See id. at 7 (noting that 99 percent of all married couples were of the same
race in 1970, while over 94 percent were in 2000).
174. Euel Elliott & Andrew I.E. Ewoh, The Evolution of an Issue: The Rise and
Decline of Affirmative Action, POLY STUD. REV., June 22, 2000, at 212.
175. For an article setting forth the concept of colorblind segregation in the
context of neighborhood residential patterns and public housing, see Michelle Wilde
Anderson, Colorblind Segregation: Equal Protection as a Bar to Neighborhood
Integration, 92 CALIF. L. REV. 841, 879-83 (2004).
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2007:239 Legacy of Unintended Consequences 263
refused to treat ongoing segregation as evidence that America is not yet a
colorblind society.176 With desegregation remedies drawing to a close
and public schools once again becoming racially identifiable, judges
have dismissed the resulting segregation as a product of private
preferences and socioeconomic differences.177 Just as individuals persist
in selecting spouses of the same race under a colorblind regime,
homeowners can choose neighbors of the same race. Segregated
marriages, neighborhoods, and public schools simply reflect these private
choices.
In this respect, there are some eerie parallels between Loving and
the Supreme Court’s 1883 decision to uphold antimiscegenation laws in
Pace v. Alabama.178 In both instances, a case involving race and marriage
was the harbinger of a fundamental shift in the Court’s equal protection
jurisprudence. Pace presaged an era of separate-but-equal laws by
concluding that bans on intermarriage were constitutional so long as they
imposed equivalent penalties on both whites and blacks.179 This regime
would receive a resounding affirmation thirteen years later in Plessy v.
Ferguson, which extended the principle to railway cars.180 Plessy was
quickly applied to other settings, including the public schools.181
Together, Pace, Plessy, and their progeny sounded the death knell for
Reconstruction and led to the rise of Jim Crow.182 In a similar way,
Loving used interracial marriage as an uncontroversial setting in which to
endorse a formal norm of colorblindness, regardless of whether it
resulted in integration. The Court’s concern for marital liberty justified
its indifference to rates of interracial marriage. With Loving, colorblind
segregation ceased to be an oxymoron. Since then, federal courts have
used the rhetoric of colorblindness to undo color-conscious remedies that
integrated schools and workplaces.183
176. See Neil Gotanda, A Critique of “Our Constitution is Color-Blind, 44
STAN. L. REV. 1, 6-7, 40-52 (1991).
177. See, e.g., Freeman v. Pitts, 503 U.S. 467, 495 (1992); Bd. of Educ. v.
Dowell, 498 U.S. 237, 242-43 (1991). See generally Gary Orfield, Turning Back to
Segregation, in DISMANTLING DESEGREGATION: THE QUIET REVERSAL OF BROWN V. BOARD
OF EDUCATION 1, 1-5, 19-22 (Gary Orfield & Susan E. Eaton eds., 1996).
178. 106 U.S. 583 (1883).
179. See id. at 585; MORAN, supra note 42, at 80-81.
180. 163 U.S. 537, 547-48 (1896).
181. Gong Lum v. Rice, 275 U.S. 78, 86-87 (1927); see also Cumming v.
Richmond County Bd. of Educ., 175 U.S. 528, 543-44 (1899).
182. J. HARVIE WILKINSON III, FROM BROWN TO BAKKE: THE SUPREME COURT
AND SCHOOL INTEGRATION: 1954-1978, at 17 (1979); C. VANN WOODWARD, THE
STRANGE CAREER OF JIM CROW 97-102 (3d ed. 1974).
183. See John Charles Boger, Willful Colorblindness: The New Racial Piety and
the Resegregation of Public Schools, 78 N.C. L. REV. 1719, 1722-29 (2000); see also
Cynthia L. Estlund, Working Together: The Workplace, Civil Society, and the Law, 89
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264 WISCONSIN LAW REVIEW
B. New Paradigms of Intimacy: Same-Sex Marriage Advocacy and the
Rise of Marriage-Minded Singlehood
With respect to marriage, Loving again has some self-proclaimed
heirs but also leaves a larger legacy that has yet to be fully examined.
Proponents of same-sex marriage have laid claim to Loving, a prospect
that the Justices in all likelihood did not contemplate. Like advocates of
multiracialism, gays and lesbians have treated the decision as
transformative even as they contest an assumption that the Court largely
took for granted. Less widely acknowledged is the way in which the
Court entrenched a hierarchy of intimacy that left attachments outside of
marriage unacknowledged and unprotected. In fact, Loving reflects the
law’s tendency to prefer marriage and the nuclear family over all other
personal relationships, despite the fact that a growing segment of the
population—both gay and straight—cannot count on these conventional
arrangements for love and security.
1. THE SAME-SEX MARRIAGE MOVEMENT
In recent years, Loving has taken on new prominence because of its
role in the same-sex marriage debate. The Justices, in all likelihood, were
unaware of the opinion’s potential to transform marriage in this way. At
the time of the decision, there was no visible gay rights movement. Two
years later, the Stonewall riots in New York would galvanize gays and
lesbians, mobilizing them as a civil rights constituency.184 In the early
1970s, a few same-sex couples sought to marry.185 Although some gay-
friendly churches performed wedding ceremonies, local registrars
soundly rebuffed any efforts to get marriage licenses.186 The Supreme
Court’s 1986 decision in Bowers v. Hardwick affirmed a Texas law that
criminalized homosexual sodomy between consenting adults who
engaged in the act in their own home.187 According to the Court, there
was no fundamental right to privacy that protected the defendants
because “[n]o connection between family, marriage, or procreation on
the one hand and homosexual activity on the other has been
demonstrated.”188 This decision, which contrasted illicit homosexual
GEO. L.J. 1, 13-19, 78-94 (2000); Donald E. Lively & Stephen Plass, Equal Protection:
The Jurisprudence of Denial and Evasion, 40 AM. U. L. REV. 1307, 1323-24, 1336-46
(1991).
184. WILLIAM N. ESKRIDGE, JR. & DARREN R. SPEDALE, GAY MARRIAGE: FOR
BETTER OR FOR WORSE?: WHAT WEVE LEARNED FROM THE EVIDENCE 16 (2006).
185. See id.
186. See id. at 16-17.
187. 478 U.S. 186, 190-96 (1986).
188. Id. at 191.
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2007:239 Legacy of Unintended Consequences 265
activity with protected rights to marry and procreate, seemed to doom
gay marriage in the courts. Heeding the message, activists turned their
attention to fighting antigay violence, combating discrimination in the
workplace, and grappling with the emerging AIDS crisis.189
Even so, gay rights advocacy in the 1980s helped to lay the
foundation for the revival of a same-sex marriage agenda in the 1990s.
The battle against economic discrimination revealed just how large a tax
gays and lesbians paid because they could not marry. Advocacy
organizations would soon catalog the many advantages that accrued to
spouses: workplace insurance and health-care coverage, preferred tax
status, social-security benefits, standing to file wrongful death actions,
and rights to inherit property under the laws of intestacy, among
others.190 The AIDS epidemic brought home the need for official
recognition of gay relationships in a graphic way. As Frank Rich would
write in the New York Times, “in retrospect, [the AIDS epidemic] made
same-sex marriage inevitable. Americans watched as gay men were
turned away at their partners’ hospital rooms and denied basic rights
granted to heterosexual couples coping with a spouse’s terminal illness
and death.”191
In the 1990s, the same-sex marriage issue once again took center
stage when the Hawaii Supreme Court found that a statute limiting the
right to marry to heterosexuals discriminated on the basis of sex and
therefore potentially violated the state constitution’s equal protection
clause.192 In reaching this conclusion, the majority relied heavily on
Loving. As the opinion explained,
the Virginia courts declared that interracial marriage simply
could not exist because the Deity had deemed such a union
intrinsically unnatural, and, in effect, because it had theretofore
never been the “custom” of the state to recognize mixed
marriages, marriage “always” having been construed to
presuppose a different configuration. With all due respect to
the Virginia courts of a bygone era, we do not believe that trial
judges are the ultimate authorities on the subject of Divine
Will, and, as Loving amply demonstrates, constitutional law
189. ESKRIDGE & SPEDALE, supra note 184, at 18.
190. See EVAN WOLFSON, WHY MARRI AGE MATTERS: AMERICA, EQUALITY, AND
GAY PEOPLES RIGHT TO MARRY 13-15 (2004). Evan Wolfson is the founder and
executive director of Freedom to Marry, a “gay and non-gay partnership working to win
marriage equality nationwide.” See Freedom to Marry, About Us,
http://freedomtomarry.org/about.asp (last visited June 21, 2007).
191. Frank Rich, The Joy of Gay Marriage, N.Y. TIMES, Feb. 29, 2004, § 2, at 1.
192. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), declared moot sub nom. Baehr v.
Miike, No. 20371, 1999 Haw. LEXIS 391 (Dec. 9, 1999).
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266 WISCONSIN LAW REVIEW
may mandate, like it or not, that customs change with an
evolving social order.193
Even after a backlash that undid the Hawaii court’s ruling, lesbians
and gays took a renewed interest in pursuing marriage as a constitutional
right at the state level.194 In fact, the intense hostility to the decision
helped to generate a consensus that same-sex marriage must be a
centerpiece of the gay rights agenda.195 In 2003, the United States
Supreme Court overruled Bowers196 and concluded that Texas’s sodomy
statute violated the rights of homosexuals to liberty and privacy.197
Although gays and lesbians did not believe that the Court soon would be
recognizing their right to marry, many saw the decriminalization of
sodomy as evidence of America’s increasing acceptance of
homosexuality.198 The Court’s ruling helped to sustain the battle to gain
recognition of same-sex marriage in the state courts.199
The Hawaii Supreme Court’s decision prompted a flurry of
commentary on whether bans on interracial marriage and same-sex
marriage were comparable. Indeed, to commemorate the thirtieth
anniversary of Loving, a historically black law school and two religiously
affiliated law schools, one Catholic and one Mormon, co-sponsored a
conference in Washington, D.C. on “Law and the Politics of
Marriage.”200 Much of the conference was devoted to exploring the
validity of the Loving analogy.201 Papers addressed the propriety of
193. Id. at 63 (citations omitted). Interestingly, gay rights organizations did not
take a leading role in the Hawaii litigation because of internal divisions about the wisdom
of pursuing the right to same-sex marriage. WOLFSON, supra note 190, at 30. The case
was therefore filed by a local civil rights attorney in Honolulu. See id. at 30-32. It appears
that the Loving analogy was introduced in an amicus brief submitted to the Hawaii
Supreme Court by Lambda Legal Defense and Education Fund. See Brief of Lambda
Legal Defense & Education Fund, Inc. as Amicus Curiae Supporting Plaintiff-Appellant
at 1-3, Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (No. 15689).
194. See ESKRIDGE & SPEDALE, supra note 184, at 20.
195. See id.
196. 478 U.S. 186 (1986).
197. Lawrence v. Texas, 539 U.S. 558, 578 (2003).
198. See ESKRIDGE & SPEDALE, supra note 184, at 229-30, 235; Edward Stein,
Introducing Lawrence v. Texas: Some Background and a Glimpse of the Future, 10
CARDOZO WOMENS L.J. 263, 275-80 (2004); see also Ariela R. Dubler, Immoral
Purposes: Marriage and the Genus of Illicit Sex, 115 YALE L.J. 756, 760-61 (2006).
199. For instance, after 2003, the question of same-sex marriage continued to be
litigated vigorously in New Jersey and Massachusetts. See Lewis v. Harris, 908 A.2d 196
(N.J. 2006); Cote-Whitacre v. Dep’t of Pub. Health, 844 N.E.2d 623 (Mass. 2006);
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
200. Robert A. Destro, Introduction to Symposium, Law and the Politics of
Marriage: Loving v. Virginia After 30 Years, 47 CATH. U. L. REV. 1207, 1208 (1998).
201. See id. at 1222-26.
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2007:239 Legacy of Unintended Consequences 267
extending a paradigm of racial discrimination to gender and sexual
orientation as well as the logic of describing the Court’s rejection of
antimiscegenation laws as a redefinition of marriage.202
Same-sex marriage advocates argued that, in 1967, the historical
definition of marriage was same-race, while today it is opposite-sex.
Much as the Court in Loving redefined marriage to correct a racial
injustice, judges should do the same to rectify discrimination against
gays and lesbians. According to this view, lifting the ban on same-sex
marriage would dismantle heterosexism, just as Loving undid white
supremacy.203 Critics of same-sex marriage insisted that the Loving
analogy was misleading and manipulative. They believed that the Court
had reaffirmed traditional marriage as a fundamental building block of a
well-ordered society. Because race was irrelevant to the character and
capacity to marry, most states outside of the South had repealed their
antimiscegenation statutes before the Loving decision.204 The decline of
antimiscegenation laws reflected the fact that they did nothing to advance
the state’s interest in preserving a robust social order.205 By contrast, the
bedrock principle that marriage takes place between a man and a woman
was central to the institution’s stabilizing influence.206 For that reason,
nearly every state had concluded that marriage was limited to
heterosexual couples.207
As these widely divergent accounts suggest, the Loving Court’s slim
analysis of marriage as a fundamental right could support a number of
competing interpretations. Chief Justice Warren addressed the issue only
202. See id. at 1219-21; David Orgon Coolidge, Playing the Loving Card: Same-
Sex Marriage and the Politics of Analogy, 12 BYU J. PUB. L. 201 (1998); Richard F.
Duncan, From Loving to Romer: Homosexual Marriage and Moral Discernment, 12
BYU J. PUB. L. 239 (1998).
203. WILLIAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE: FROM
SEXUAL LIBERTY TO CIVILIZED COMMITMENT 162-72 (1996); Justin Reinheimer, Recent
Development, Same-Sex Marriage Through the Equal Protection Clause: A Gender-
Conscious Analysis, 21 BERKELEY J. GENDER L. & JUST. 213, 233-34 (2006); Mark
Strasser, Loving in the New Millenium: On Equal Protection and the Right to Marry, 7
U. CHI. L. SCH. ROUNDTABLE 61 (2000); Andrew Koppelman, Why Discrimination
Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. REV. 197, 208-19
(1994).
204. WALLENSTEIN, supra note 73, at 199-200.
205. See Duncan, supra note 202, at 250-51; Lynn D. Wardle, A Critical
Analysis of Constitutional Claims for Same-Sex Marriage, 1996 BYU L. REV. 1, 82.
206. See Monte Neil Stewart & William C. Duncan, Marriage and the Betrayal
of Perez and Loving, 2005 BYU L. REV. 555, 556; Douglas W. Kmiec, The Procreative
Argument for Proscribing Same-Sex Marriage, 32 HASTINGS CONST. L.Q. 653, 653
(2005).
207. See Stewart & Duncan, supra note 206, at 575-81; Coolidge, supra note
202, at 228 & n.106; Wardle, supra note 205, at 76.
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268 WISCONSIN LAW REVIEW
briefly at the end of his opinion.208 After scaling back the discussion to
satisfy his colleagues,209 he had little to say about the nature of marriage
and the reasons for its central place in a well-ordered society. In fact, as
contemporary same-sex marriage advocates have come to acknowledge,
their efforts owe at least as much to Perez as to Loving.210
The California Supreme Court’s decision in Perez was
groundbreaking in its day, and very little could be taken for granted. A
state court, after all, was acting to overturn antimiscegenation laws at a
time when the U.S. Supreme Court was silent.211 Justice Traynor’s
opinion in Perez went much further than Chief Justice Warren’s in
elaborating a fundamental right to marry. In explaining the unique
burden of the state’s ban on intermarriage, Justice Traynor noted that
segregation on railway cars or in legal education does not wholly deprive
a person of access to a train trip or a law degree.212 Yet, “[s]ince the
essence of the right to marry is freedom to join in marriage with the
person of one’s choice, a segregation statute for marriage necessarily
impairs the right to marry.”213 As Justice Traynor made clear, the love of
one’s life is not a fungible commodity; people should be free to marry
their soulmates without legal interference.214
Although the California court provided a thorough analysis of the
right to marry, the facts of Perez offer some challenges to same-sex
marriage advocates. Andrea Perez and Sylvester Davis were both devout
Catholics.215 One of their primary arguments was that the Church was
willing to marry them, and the state’s antimiscegenation law infringed on
their freedom of religion.216 Given that much of the opposition to same-
sex marriage is rooted in religious beliefs, the couple’s framing of the
case might be an awkward basis for drawing analogies. However, the
California Supreme Court did not rely heavily on this claim. Instead,
Justice Traynor’s opinion emphasized the racist assumptions behind the
208. See Loving v. Virginia, 388 U.S. 1, 12 (1967).
209. See supra notes 18-20 and accompanying text.
210. See, e.g., Adam Liptak, Gay Marriage Through a Black-White Prism, N.Y.
TIMES, Oct. 29, 2006, § 4, at 3 (“Advocates for gay marriage say there is much to be
learned from Perez.”).
211. The Court’s unwillingness to confront the issue became clear in Naim v.
Naim, 350 U.S. 891 (1955), appeal reconsidered, 350 U.S. 985 (1956); see supra notes
110-19 and accompanying text.
212. See Perez v. Sharp, 198 P.2d 17, 20-21 (1948).
213. Id. at 21.
214. See id. at 25.
215. Id. at 18.
216. See id.; Orenstein, supra note 76, at 389-90.
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2007:239 Legacy of Unintended Consequences 269
intermarriage ban and discredited them by reviewing available evidence
and applying legal logic.217
By adopting this approach, Justice Traynor may have tacitly
recognized the increasingly secular nature of marriage. Here, too, the
decision arguably was ahead of its time. In the late 1940s and 1950s,
marriage overwhelmingly dominated Americans’ romantic choices and
was still heavily steeped in religious tradition.218 With the sexual
revolution of the 1960s and 1970s, however, intimate relations became
ever more secularized and commodified.219 This trend converted
marriage into a site for the consumption of pleasure, rather than a
permanent state of grace.220 As a result, couples no longer faced a serious
stigma because they had sex outside of marriage.221 In some cases, the
sexual relationship was premarital, a brief prelude to deciding whether
marriage was the right path. In other cases, a couple decided to cohabit
permanently or until they had children. Finally, in the spirit of
experimentation, people could have sex simply because it was enjoyable,
regardless of whether they planned to marry. Without the notion that
marriage was a sacrament, divorce became commonplace.222 At the same
time, the number of single mothers grew dramatically.223 In short,
marriage began a slow, steady statistical decline.
Despite this ongoing transformation of intimate life, the narratives
in Perez and Loving are strikingly similar. Both Justice Traynor and
Chief Justice Warren recounted simple love stories in which race
wrongly got in the way of marriage. In part, these stories were possible
because interracial couples could marry in some states. The Lovings
217. See Perez, 198 P.2d at 19-23.
218. See Barbara A. Mitchell, Changing Courses: The Pendulum of Family
Transitions in Comparative Perspective, 37 J. COMP. FAM. STUD. 325 (2006) (noting the
intensely traditional nature of post-World War II family life); Frank F. Furstenberg, Jr.,
The Future of Marriage, AM. DEMOGRAPHICS, June 1996, at 34 (describing the decline in
marriage since the 1940s, in part due to increasing secularization).
219. Interestingly, both critics and supporters of same-sex marriage agree on this
point. Compare ESKRIDGE & SPEDALE, supra note 184, at 210-11, with Katherine Shaw
Spaht, Beyond Baehr: Strengthening the Definition of Marriage, 12 BYU J. PUB. L. 277,
281-82 (1998).
220. See ESKRIDGE & SPEDALE, supra note 184, at 211.
221. See id. at 210.
222. BUREAU OF THE CENSUS, HOW WERE CHANGING—DEMOGRAPHIC STATE OF
THE NATION: 1997 (1997), available at http://www.census.gov/prod/2/pop/p23/p23-
193.pdf (describing the increasing rates of divorce since 1970 and linking this change to
the growing numbers of single-parent families).
223. See Debra Rosenberg & Pat Wingert, First Comes Junior in a Baby
Carriage, NEWSWEEK, Dec. 4, 2006, at 56 (reporting that four in ten children are born to
unmarried mothers). Efforts to counter this trend through initiatives like covenant
marriages have not met with great success. See Don Monkerud, Covenant Marriage on
the Rocks, HUMANIST, May-June 2006, at 39, 39-40.
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270 WISCONSIN LAW REVIEW
were married in Washington, D.C., though they were banished from
Virginia. Andrea Perez and Sylvester Davis could have gone to a
neighboring state to be married but chose not to on principle.224 As a
result, there was clear precedent for the legal recognition of marriages
across the color line. No great leap of the judicial imagination was
required to overturn antimiscegenation laws.
By contrast, same-sex marriage advocates have not had the luxury
of treating marriage as just about love. Until recently, gays and lesbians
were not able to wed anywhere. Even if they could marry in one state,
many other states and the federal government refused to accord the
marriages full faith and credit.225 At an individual level, gays and
lesbians might describe romances in which sexual orientation stood in
the way of a conventional happy ending.226 At an organizational level,
though, advocates were forced to demand legal changes that
approximated the economic benefits of marriage, regardless of whether
same-sex couples obtained the formal right to marry. For instance, the
gay rights movement has pushed for domestic partnership laws, which
enable employees to add beneficiaries other than spouses to health care
and insurance plans.227 Although these partnerships fall far short of the
benefits that automatically accrue to married couples,228 the laws have
proven to be a logical outgrowth of efforts to combat discrimination on
the job.229
When the battle for same-sex marriage ignited in the 1990s, it came
as no surprise that advocacy organizations listed all of the tax, health
care, insurance, property, and social welfare advantages that were part
and parcel of being married.230 In doing so, gays and lesbians highlighted
the secularization and commodification of marriage. Marriage was not
224. See Loving v. Virginia, 388 U.S. 1, 2-3 (1967); Orenstein, supra note 76, at
386.
225. See Andrew Koppelman, Same-Sex Marriage and Public Policy: The
Miscegenation Precedents, 16 QUINNIPIAC L. REV. 105 app. at 134-50 (1996) (collecting
state laws denying recognition to same-sex marriages performed in another jurisdiction).
For an analysis of choice-of-law and federalism concerns posed by the laws, see Barbara
J. Cox, Same-Sex Marriage and Choice of Law: If We Marry in Hawaii, Are We Still
Married When We Return Home?, 1994 WIS. L. REV. 1033, 1062-99; Linda J. Silberman,
Can the Island of Hawaii Bind the World?: A Comment on Same-Sex Marriage and
Federalism Values, 16 QUINNIPIAC L. REV. 191, 192-203 (1996).
226. See ESKRIDGE & SPEDALE, supra note 184, at 3-5 (describing how the first
gay couple to petition for a marriage license in the United States made a “romantic
gesture [that] had a fairy-tale quality for the two men who wanted to live ‘happily ever
after’”).
227. See id. at 18.
228. See DAVID MOATS, CIVIL WARS: A BATTLE FOR GAY MARRIAGE 22 (2004).
229. See ESKRIDGE & SPEDALE, supra note 184, at 18.
230. WOLFSON, supra note 190, app. B, at 194-97.
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2007:239 Legacy of Unintended Consequences 271
only the culmination of romance but also a valuable means of
distributing income and wealth.231 Precisely because same-sex marriage
proponents disaggregated the material and emotional aspects of
marriage, some courts were able to resolve questions of unequal
treatment by permitting legislatures to consider functional alternatives to
marriage, such as civil unions.232 Civil unions approximate the economic
advantages of being spouses but without the marriage license.233
Acceptance of this alternative suggests that pragmatic compromise must
trump romantic aspirations—at least temporarily—as gays and lesbians
struggle to gain social acceptance.234
Critics of civil unions have returned to the Loving analogy, pointing
out that it would have been unthinkable for the Court to relegate
interracial couples to such a clearly inferior arrangement. Civil unions
have been likened to a separate-but-equal regime that subordinates the
intimate lives of gays and lesbians.235 This analogy to Loving has been
contested because the concept of separate but equal was rooted in a
history of slavery and Jim Crow segregation. Those who defend civil
unions argue that they are a step on the way to equality and should not be
equated with laws designed to preserve racial hierarchy after the Civil
War and Reconstruction.236
As this analysis of the separate-but-equal doctrine suggests, the
same-sex marriage debate so far has drawn primarily on Loving’s
analysis of race and subordination. Because the Court presumed that
couples would go to the altar, the decision has much less to say about the
increasingly blurred line between sex and marriage. Civil unions were
unimaginable to the Court in 1967 because the law had yet to recognize a
231. Steven K. Homer, Note, Against Marriage, 29 HARV. C.R.-C.L. L. REV.
505, 515-16 (1994) (giving one definition of traditional marriages as “a bundle of
benefits and entitlements”).
232. See, e.g., Kerrigan v. State, 909 A.2d 89 (Conn. Super. Ct. 2006); Lewis v.
Harris, 908 A.2d 196 (N.J. 2006); Baker v. State, 744 A.2d 864 (Vt. 1999). But cf.
Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004) (suggesting strongly
in an advisory opinion to the state senate that civil unions violated equal protection under
the Massachusetts constitution).
233. See William N. Eskridge, Jr., Equality Practice: Liberal Reflections on the
Jurisprudence of Civil Unions, The 2000 Edward C. Sobota Memorial Lecture at the
Albany Law School (Oct. 12, 2000), in 64 ALB. L. REV. 853, 865-67 (2001).
234. See id. at 867-70; Tonja Jacobi, Sharing the Love: The Political Power of
Remedial Delay in Same-Sex Marriage Cases, 15 LAW & SEXUALITY 11, 55-56 (2006);
Nancy K. Kubasek et al., Civil Union Statutes: A Shortcut to Legal Equality for Same-Sex
Partners in a Landscape Littered with Defense of Marriage Acts, 15 J.L. & PUB. POLY
229, 238-39, 257-58 (2004).
235. See, e.g., MICHAEL MELLO, LEGALIZING GAY MARRIAGE 172-73 (2004);
MOATS, supra note 228, at 16-18.
236. See, e.g., Eskridge, supra note 233, at 864-65; Greg Johnson, In Praise of
Civil Unions, 30 CAP. U.L. REV. 315, 332-34 (2002).
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272 WISCONSIN LAW REVIEW
proliferation of alternatives to a traditional wedding.237 Domestic
partnerships, civil unions, cohabitation, and single motherhood all have
parsed matrimony into its respective functions; as a result, marriage has
become a practical contingency rather than a romantic destiny.238 In fact,
by the time state courts took on the question of same-sex marriage, fewer
and fewer heterosexuals were actually married.239 The creation of civil
unions arguably was part of a general societal trend toward increasing
experimentation with varied forms of intimacy. The secularization and
commodification of relationships allowed civil unions to be framed as
pluralistic, rather than crudely subordinating, and therefore perfectly
consistent with the quest for same-sex marriage.
The strategy of parsing marriage into its constituent functions has so
far served gays and lesbians well in their incremental pursuit of equal
recognition. Even so, this approach can backfire at times. For instance,
after some high-profile victories for the same-sex marriage movement, a
number of states and the federal government adopted legislation in
“defense of marriage.” The statutes define marriage as between a man
and a woman240 and deny recognition to homosexual couples whose
relationships have been legally acknowledged elsewhere.241 Defense-of-
237. See Dubler, supra note 198, at 808 (“[By 2003,] the links between marriage
and licit sex, and nonmarriage and illicit sex, had already substantially frayed in multiple
legal contexts.”); see also JUDITH STACEY, BRAVE NEW FAMILIES: STORIES OF DOMESTIC
UPHEAVAL IN LATE-TWENTIETH-CENTURY AMERICA 16-17, 252-53 (2d ed. 1998).
238. By contrast, until the mid-1800s, heterosexual couples who lived together
for a substantial period without taking wedding vows were nonetheless deemed to be in a
common law marriage. See RICHARD D. MOHR, THE LONG ARC OF JUSTICE: LESBIAN AND
GAY MARRIAGE, EQUALITY, AND RIGHTS 62-63 (2005). This approach preserved the
hegemony of marriage by assimilating alternatives like cohabitation, regardless of the
individuals’ choices about formalizing the relationship. See id. Interestingly, a ballot
measure recently proposed in Washington state would have the opposite effect as
common law marriage: it would annul marriages if couples failed to have children in
three years. Rachel La Corte, Ballot Proposal Lists Kids as Marriage Must, FLA. TIMES-
UNION (Jacksonville), Feb. 6, 2007, at A4.
239. See Sam Roberts, It’s Official: To Be Married Means to Be Outnumbered,
N.Y. TIMES, Oct. 15, 2006, § 1, at 22 (noting that married couples are now a minority,
despite the overall popularity of the institution).
240. See, e.g., Defense of Marriage Act, Pub. L. 104-199, § 3(a), 110 Stat. 2419
(1996) (codified at 1 U.S.C. § 7 (2000)) (defining “marriage” and “spouse”). All but five
states have a statute or constitutional amendment prohibiting same-sex marriage. DOMA
Watch, http://www.domawatch.org/stateissues/index.html (last visited July 24, 2007). In
adopting what have been termed mini-Defense of Marriage Acts, some states have relied
on only a constitutional amendment, see, e.g., NEV. CONST. art. I, § 21; others have used
only a statute, see, e.g., FLA. STAT. § 741.212 (2007); and still others have both
constitutional and statutory provisions, see, e.g., IDAHO CONST. art. III, § 28; IDAHO CODE
ANN. § 32-201 (2007).
241. See 28 U.S.C. § 1738C (2000) (stating that a same-sex marriage from one
state need not be recognized in other jurisdictions); see also IDAHO CODE § 32-209; IND.
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2007:239 Legacy of Unintended Consequences 273
marriage laws can be construed broadly or narrowly. If “marriage”
means only the complete package of material and emotional benefits that
accrue to spouses, then civil unions and domestic partnerships should
receive recognition because they are not marriages. If the term
encompasses all of the fragmented ways in which states now
acknowledge intimate relationships, however, Congress and state
legislatures can refuse to acknowledge not just same-sex marriages but
also substitutes that are “marriage lite.” This harsh result can be justified
on the ground that all of these arrangements undermine the centrality and
sanctity of traditional marriage.242 As a result, gays and lesbians will
have no way to obtain even modest legal recognition of their status as
committed couples in these states.
As self-proclaimed heirs to Loving, same-sex marriage advocates
have been willing to go much further than the Court in disaggregating the
functions of marriage. Mildred Jeter and Richard Loving only had to tell
the Court that they loved each other and wanted to marry; they did not
have to explain how marriage would affect their tax status, employment
benefits, property rights, and legal standing to sue for wrongful death.
Like proponents of multiracialism, same-sex marriage advocates have
used the Loving decision to revisit the meaning of equality in the face of
rising pluralism. The multiracial movement has drawn on the decision to
complicate the monolithic image of race that the Justices adopted, while
gays and lesbians have used Chief Justice Warren’s opinion to
interrogate the definition of marriage that the Court largely took for
granted. In fact, the brevity and generality of the opinion allow it to
remain highly relevant in the face of changing conditions. Advocates
have appropriated the case as an exemplar of a constitutional
jurisprudence rife with possibilities, including some that the Justices did
not contemplate themselves.
CODE § 31-11-1-1(b) (2007); OHIO CONST. art. XV, § 11; OHIO REV. CODE ANN. §
3101.01 (LexisNexis 2007).
242. In 2003, Congress proposed a constitutional amendment on the issue.
Federal Marriage Amendment, H.R.J. Res. 56, 108th Cong. (2003); S.J. Res. 30, 108th
Cong. § 2 (2004) (“Marriage in the United States shall consist only of the union of a man
and a woman. [No state or federal constitution] shall be construed to require that
marriage or the legal incidents thereof be conferred upon any union other than the union
of a man and a woman.”); see also Mike Allen, Gay Marriage Looms as Issue, WASH.
POST, Oct. 25, 2003, at A1. A Michigan court recently held that the state’s marriage
amendment precluded employers from conferring spousal benefits to registered domestic
partners. See Nat’l Pride at Work, Inc. v. Governor of Mich., No. 265870, 2007 Mich.
App. LEXIS 240 (Mich. Ct. App. Feb. 1, 2007); Susan Saulny, Michigan Court Bars a
Benefit for Same-Sex Domestic Partners, N.Y. TIMES, Feb. 3, 2007, at A10.
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274 WISCONSIN LAW REVIEW
2. MARRIAGE-MINDED SINGLEHOOD
Loving has been invoked to validate new forms of intimacy by
expanding the definition of marriage, but the case also leaves an implicit
and largely unquestioned legacy, one that privileges marriage over other
personal relationships. Today, this facet of Loving seems especially
ironic because, despite Mildred Jeter’s storybook romance, black women
are among those least likely to marry, most apt to divorce, and least
likely to remarry.243 Although black women are especially unlikely to
benefit from marriage, Americans as a whole are increasingly living their
lives as unmarried people. In October 2006, the Census Bureau
announced that, for the first time, married couples were in the minority,
comprising only 49.7 percent of American households.244 By contrast, in
1930, married couples accounted for about 84 percent of households.245
Upon release of this finding, one news article hastened to reassure
readers:
The numbers by no means suggest marriage is dead or
necessarily that a tipping point has been reached. The total
number of married couples is higher than ever, and most
Americans eventually marry. But marriage has been facing
more competition. A growing number of adults are spending
more of their lives single or living unmarried with partners, and
the potential social and economic implications are profound.246
Although more Americans are living single, marriage remains far
and away the single most important way in which the government
recognizes and supports intimate relationships. The institution of
marriage formally excludes gays and lesbians, but the privileging of
marriage informally excludes many more individuals who are never-
married, divorced, or widowed and cannot rely on a spouse to satisfy
their needs for intimacy and support. In 1975, Peter Stein wrote that “the
ideology and goals of the women’s, men’s, and gay liberation
movements are helping to lay the groundwork” to critique conventional
marriage and sex-role stereotyping.247 Little did Stein know that thirty
years later, the men’s movement would remain obscure, the gay
movement would be among traditional marriage’s most ardent
243. R. Richard Banks & Su Jin Gatlin, African American Intimacy: The Racial
Gap in Marriage, 11 MICH. J. RACE & L. 115, 118-23 (2005).
244. See Roberts, supra note 239.
245. Id.
246. Id.
247. Peter J. Stein, Singlehood: An Alternative to Marriage, 24 FAM.
COORDINATOR 489, 501 (1975).
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2007:239 Legacy of Unintended Consequences 275
proponents, and the most prominent liberal reform feminists would be
focused on how to combine work and family within marriage.248
Because the legal hegemony of marriage persists today, other
caretaking relationships are neglected. Single mothers who must rely on
friends and neighbors to provide an informal network of care and support
have no way to protect or subsidize these relationships by law.249 Adults
who want to care for the grandmother who raised them cannot seek
unpaid leave under the Family and Medical Leave Act of 1993.250
Elderly widows who would like to share housing to save money find few
legal guidelines and are forced to model their arrangements on prenuptial
agreements.251 As much as Americans prize the freedom to forge
intimate relationships, there are precious few ways to recognize these
connections and shelter them from adversity outside of marriage.
In 2001, the Law Commission of Canada released a report entitled
Beyond Conjugality: Recognizing and Supporting Close Personal Adult
Relationships.252 The Commission recognized that “[a] substantial
minority of Canadian households involves adults living alone, lone-
parent families or adults living together in non-conjugal relationships.”253
Noting the importance of a “family of friends,”254 the Commission urged
the government not to “rely too heavily on conjugal relationships in
accomplishing important state objectives.”255 Instead, the report
contended, officials should allow people to register relationships not
limited to couples; by mutual consent, the parties would be subject to
legal responsibilities and entitled to legal protections.256 In this way,
lifelong friends or members of extended families could “assume
obligations of support, presumptively share property, have the power to
248. See Rachel F. Moran, How Second-Wave Feminism Forgot the Single
Woman, 33 HOFSTRA L. REV. 223, 224-25, 274-78 (2004).
249. See id. at 289-90, 292; Rosanna Hertz & Faith I.T. Ferguson, Kinship
Strategies and Self-Sufficiency Among Single Mothers by Choice: Post Modern Family
Ties, 20 QUALITATIVE SOC. 187, 204 (1997) (describing how single mothers build a
“repertory family,” defined as an “ensemble” comprised of friends and neighbors as well
as relatives).
250. Pub. L. No. 103-3, tit. I, § 2, 107 Stat. 6 (codified at 29 U.S.C. §§ 2601-54
(2000) and 5 U.S.C. §§ 6381-6387 (2000)).
251. See Jane Gross, Older Women Team Up to Face Future Together, N.Y.
TIMES, Feb. 27, 2004, at A1.
252. LAW COMMN OF CAN., BEYOND CONJUGALITY: RECOGNIZING AND
SUPPORTING CLOSE PERSONAL ADULT RELATIONSHIPS (2001), http://epe.lac-
bac.gc.ca/100/200/301/lcc-cdc/beyond_conjugality-e/pdf/37152-e.pdf.
253. Id. at x.
254. See id.
255. Id. at xviii.
256. See id.
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make decisions about one another’s caretaking arrangements and medical
treatment, and so on.”257
Today, there is little evidence that the United States will follow the
Canadian example and attempt to broaden the scope of protected intimate
relationships. If anything, courts, legislatures, and political leaders seem
more intently focused on marriage than ever. President George W. Bush
has suggested laws to promote marriage as a cure for welfare
dependency.258 States have considered covenant marriage statutes that
combine premarital counseling with tougher restrictions on divorce.259
Gays and lesbians have advocated for same-sex marriage, while
Congress and most states have enacted measures to define marriage as an
act between a man and a woman.260 This longing for the respectability of
traditional marriage, despite its statistical decline, suggests that a good
love story still has a strong grip on the country’s imagination, just as it
did when the Court decided Loving. If anything, Americans have become
increasingly committed, if not to wedded bliss, then to marriage-minded
singlehood.
C. From the Color Line to the International Border
Although heirs have laid claim to Loving’s legacy in the areas of
race and marriage, almost no one has invoked the Court’s reasoning to
critique the failure to recognize and protect the intimate ties that
immigrants form with citizens and noncitizens alike.261 Immigration has
unsettled some of the Court’s assumptions about race and intimacy, yet
this impact has gone largely unnoticed. For instance, newcomers can
alter intermarriage rates and even shift the color line. Immigrants who
speak a language other than English and live in ethnic enclaves are likely
to marry endogamously. Indeed, there is “a global trend that has been
257. Moran, supra note 248, at 293-94.
258. See Admin. for Children & Families, U.S. Dep’t of Health and Human
Servs., The Healthy Marriage Initiative (HMI),
http://www.acf.hhs.gov/healthymarriage/about/mission.html (last visited June 21, 2007).
259. See A
RIZ. REV. STAT. ANN. §§ 25-901 to -906 (West 2006); ARK. CODE
ANN. §§ 9-11-801 to -811 (1987 & Supp. 2002); LA. REV. STAT. ANN. §§ 9:272 to :275.1
(2000 & Supp. 2007).
260. Defense of Marriage Act, Pub. L. No. 104-199, § 3(a), 110 Stat. 2419
(1996) (codified at 1 U.S.C. § 7 (2000) and 28 U.S.C. § 1738C (2000)). For an inventory
of states that restrict marriage to unions between a man and a woman, see HUMAN RIGHTS
CAMPAIGN, STATE PROHIBITIONS ON MARRIAGE FOR SAME-SEX COUPLE (2006),
http://www.hrc.org/Template.cfm?Section=Your_Community&Template=/ContentMana
gement/ContentDisplay.cfm&ContentID=19449.
261. A notable exception is Jennifer Chacón’s contribution to this symposium
issue. Jennifer Marie Chacón, Loving Across Borders: Immigration Law and the Limits of
Loving, 2007 WIS. L. REV. 345.
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2007:239 Legacy of Unintended Consequences 277
gathering momentum over the last forty years: immigrant and immigrant-
origin men are more and more frequently seeking wives in their countries
of origin.”262 At the same time, with each passing generation, children of
immigrants are increasingly likely to marry out;263 indeed, they do so at
substantially higher rates than blacks, most of whom are native-born.264
These patterns promote multiracialism but leave blacks “maritally
isolated.”265 Over the long run, if blacks remain uniquely excluded from
intermarriage, the racial divide may shift from white-nonwhite to black-
nonblack.266 So far—perhaps because of a focus on race relations as
purely domestic rather than international267—relatively little research has
been done to document the impact of increased immigration on racial
identity and patterns of intermarriage.
Most discussions of the secularization and commodification of
intimacy have focused on relationships among Americans. These
accounts have described the blurring of the boundaries between sex and
marriage in ways that make alternatives like cohabitation, domestic
partnerships, civil unions, and single parenthood increasingly
respectable.268 There has, however, been little attention devoted to the
ways in which global sex has complicated these boundaries and cast
doubt on the legitimacy of marriages between citizens and immigrants.
Sex trafficking dominates popular images of intimacy and international
migration.269 Women from developing countries are treated as
commodities, sex slaves wholly divested of their agency and self-
determination.270 As Americans celebrate a culture of intimate choice,
262. Hung Cam Thai, Clashing Dreams: Highly Educated Overseas Brides and
Low-Wage U.S. Husbands, in GLOBAL WOMAN, supra note 126, at 230, 231.
263. MORAN, supra note 42, at 106-09.
264. See id.
265. Id. at 175.
266. See id. See generally GEORGE YANCEY, WHO IS WHITE?: LATINOS, ASIANS,
AND THE NEW BLACK/NONBLACK DIVIDE 19-21 (2003) (arguing that Latinos and Asians
will be assimilated into a white identity in ways that blacks will not).
267. See Elizabeth Iglesias, Out of the Shadow: Marking Intersections in and
Between Asian Pacific American Critical Legal Scholarship and Latina/o Critical Legal
Theory, 40 B.C. L. REV. 349, 358-63 (1998); Stephanie L. Phillips, The Convergence of
the Critical Race Theory Workshop with LatCrit Theory: A History, 53 U. MIAMI L. REV.
1247, 1253-54 (1999).
268. See supra notes 219-23.
269. See, e.g., U.S. GOVT ACCOUNTABILITY OFFICE, GAO-06-825, HUMAN
TRAFFICKING: BETTER DATA, STRATEGY AND REPORTING NEEDED TO ENHANCE U.S.
ANTITRAFFICKING EFFORTS ABROAD 4-10 (2006) (describing federal efforts to combat the
problem, and relating President George W. Bush’s declaration that human trafficking is
“a humanitarian crisis”).
270. See Susan Tiefenbrun, The Saga of Susannah: A U.S. Remedy for Sex
Trafficking in Women: The Victims of Trafficking and Violence Protection Act of 2000,
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278 WISCONSIN LAW REVIEW
these foreign-born women find themselves on the seamy side of
consumerism.
Trafficking in women not only converts global sex into a form of
slavery, but also turns some formal marriages into raw market exchanges
that border on servitude. Dominican females who cater to male sex
tourists from Europe and the United States distinguish between
“marriage por amor (for love) and marriage por residencia (for
visas).”271 These impoverished women see no reason to “waste a
marriage certificate on romantic love when it can be transformed into a
visa to a new land and economic security.”272 Although these Dominican
females are describing marriage as a “bundle of benefits and
entitlements,” many Americans find this matter-of-fact practicality
unsavory because it violates the Western ideal of egalitarian,
companionate marriage.273 Far from a celebration of choice, these
arrangements sound vaguely like prostitution or involuntary servitude.
Consider the case of “Linda,” who found her husband “Jack”
through a list of American men seeking Filipina mail-order brides.274 She
chose him because “he was the youngest of all the Americans on the list,
which included men in their sixties and seventies . . . . Although Linda
had not experienced any romantic feelings toward him, she nonetheless
accepted his offer of marriage, which had taken place four days after his
arrival in the Philippines.”275 Once married, Jack expected Linda to play
the role of servile wife in exchange for financial security.276 Although
Linda had two children with Jack, she never grew to love him.277 Indeed,
she found their relationship to be like other service work she had done.
As she put it, “this marriage is just another long-term contract.”278 While
secularization and commodification have highlighted the economic
functions of marriage and made alternatives respectable for Americans,
the deromanticization of intimacy casts doubt on the legitimacy of
2002 UTAH L. REV. 107, 116-26; Meredith May, Sex Trafficking, S.F. CHRON., Oct. 6,
2006, at A1.
271. Denise Brennan, Selling Sex for Visas: Sex Tourism as a Stepping-Stone to
International Migration, in GLOBA L WOMAN, supra note 126, at 154, 154.
272. Id.
273. Linda Kelly, Marriage for Sale: The Mail-Order Bride Industry and the
Changing Value of Marriage, 5 J. GENDER RACE & JUST. 175, 187-88 (2002).
274. Kumiko Nemoto, Intimacy, Desire, and the Construction of Self in
Relationships Between Asian American Women and White American Men, 9 J. ASIAN-
AM. STUD. 27, 40-41 (2006).
275. Id. at 41.
276. Id. at 42.
277. See id. at 40-41.
278. Kumiko Nemoto, Race, Romance and Desire in Interracial Relationships:
Asian/Asian Americans and White Americans 69 (2004) (unpublished Ph.D. dissertation,
University of Texas).
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2007:239 Legacy of Unintended Consequences 279
relationships across international borders, regardless of whether a formal
wedding takes place.
The degradation of international intimacy in turn can thwart
recognition of the authentic emotional lives of immigrants. Even when
women are not reduced to sexual commodities, the global workforce can
be seen as little more than a factor of production.279 As a result, the
rupture of immigrants’ relationships becomes almost completely
invisible to American employers and the general public. Ironically,
immigrant women who work as nannies and maids may solve the crisis
of care for affluent, dual-earner households, even as the challenges of
rearing children left behind in the home country are largely ignored.280
Like other immigrants, these women give up their day-to-day
connections to loved ones and rely instead on the material ties of
remittances and gifts sent from afar.281 Here, too, relationships are
commodified but not in ways that celebrate choice.
Even if Loving’s holdings do not formally constrain the federal
government’s plenary power over immigration, it is interesting that
neither the symbolism nor the social history of the case has been invoked
to dignify the marital and sexual freedom of migrants.282 For instance, a
recent federal district court decision in Pennsylvania is the first to
recognize that requiring proof of legal residency violates undocumented
immigrants’ fundamental right to marry.283 Tellingly, the court’s analysis
does not mention Loving, even though the man was of Mexican origin
279. Mary Romero, Nanny Diaries and Other Stories: Imagining Immigrant
Women’s Labor in the Social Reproduction of American Families, 52 DEPAUL L. REV.
809, 840-45 (2003).
280. GRACE CHANG, DISPOSABLE DOMESTICS: IMMIGRANT WOMEN WORKERS IN
THE GLOBAL ECONOMY 55-58 (2000); MAID IN AMERICA (Independent 2005). For more
information on the film, see PBS, Maid in America,
http://www.pbs.org/independentlens/maidinamerica/index.html (last visited June 21,
2007).
281. Barbara Stark, When Globalization Hits Home: International Family Law
Comes of Age, 39 VAND. J. TRANSNATL L. 1551, 1559-61 (2006); Barrie Thorne et al.,
Raising Children and Growing Up, Across National Borders: Comparative Perspectives
on Age, Gender, and Migration, in GENDER AND U.S. MIGRATION: CONTEMPORARY
TRENDS 241, 248-50 (Pierrette Hondagneu-Sotelo ed., 2003).
282. For some instances in which cases establishing the fundamental right to
marry have been cited in the context of immigration and the plenary power doctrine, see
Kelly, supra note 273, at 190-91; Gregory R. Hawran, Taking Fairness and Retroactivity
from Immigration Law: Casenote on Fernandez-Vargas v. Gonzales, 38 U. MIAMI INTER-
AM. L. REV. 431, 450-52 (2007).
283. Buck v. Stankovic, 485 F. Supp. 2d 576 (M.D. Pa. 2007); Julia Preston,
Illegal Immigrant and the Right to Wed, N.Y. TIMES, May 2, 2007, at A18 (“[T]his ruling
was the first by a federal judge in a case testing whether immigrants can obtain marriage
licenses without current visas.” (quoting Mary Catherine Roper, an ACLU attorney
working on the case)).
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280 WISCONSIN LAW REVIEW
and his prospective bride had a non-Spanish surname.284 Although their
relationship could be characterized as an intermarriage, the judge relied
entirely on Zablocki v. Redhail.285 In that case, a Wisconsin law required
residents with minor children in the custody of another to show that
obligations of support under any court order or judgment had been met.
If a resident could not make this showing, a court had to approve the
issuance of a marriage license.286 The Supreme Court concluded that the
statute infringed on the fundamental right to marry and thus triggered
strict scrutiny.287 The law failed to meet this exacting standard because
there were other, more effective ways to generate resources for the
children.288
Applying similar reasoning, the Pennsylvania district court struck
down the requirement that non-citizens provide a visa as well as a
foreign passport as proof of identification.289 In the court’s view, the
provision clearly violated the fundamental right to marry. For
undocumented immigrants, demanding a visa would wholly preclude
them from getting a marriage license; moreover, in some cases, citizens
would be prevented from marrying their chosen partner.290 Under strict
scrutiny, the prerequisite of a visa could not pass muster because it was
not tightly connected to the goals of accurate identification or deterring
marital fraud under federal immigration law.291
Despite this noteworthy effort to recognize that immigrants—
whether documented or not—have fundamental rights of intimate
association equivalent to those of citizens, the hierarchy of marriage and
family that subordinates the transnational labor force remains largely
unquestioned. There are the sexual and marital choices of citizens, which
the Court has accorded constitutional protection in the name of fairness
and decency, and there is the commodification of non-citizens, who can
be appropriated in the service of the sexual and emotional gratification of
others in a global economy. It remains to be seen whether a
jurisprudence of fundamental rights can disrupt these entrenched
inequalities with the same force that Loving brought to bear on racial
barriers to intermarriage.
284. Buck, 485 F. Supp. 2d at 579.
285. 434 U.S. 374 (1978).
286. Id. at 375.
287. See id. at 384-87.
288. Id. at 388-90.
289. See id.
290. Buck v. Stankovic, 485 F. Supp. 2d 576, 582-83 (M.D. Pa. 2007).
291. Id. at 583-85.
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2007:239 Legacy of Unintended Consequences 281
IV. CONCLUSION
Loving v. Virginia had clear and immediate significance for Mildred
and Richard Loving. They were able to live as man and wife in Virginia.
Other couples, too, have been able to marry across the color line without
fear of official interference. This is the perfectly factual account that can
be given of the case, but Americans still struggle to know what it meant
by understanding the consequences. There is no doubt that Loving has
figured in the transformation of identity and intimacy in the United
States, even though the Justices themselves were quite circumspect in
defining race and marriage. For proponents of multiracialism and same-
sex marriage advocates alike, Chief Justice Warren’s opinion represents
an ethic of inclusion and a jurisprudence of possibility. For this reason,
even forty years later, Loving’s legacy remains fresh and full of
surprises, a testing ground for our deepest values and fondest aspirations.
In fact, some of the consequences are so subtle and profound that they
have yet to be fully appreciated. In that sense, the case is very much like
a good love story: part myth, part reality, but always ripe with the
promise of revealing our deepest selves.
... (quoting Martha Minow, "Forming Underneath Everything that Grows:" Toward a History of Family Law, 1985 WIS. L. because it effectively determines the parameters of any family law debate. 23 If the canon is inaccurate, it diverts attention from what is really at stake. By defining the appropriate terms of a family law debate, the family law canon either forces us to confront the legal (and practical) consequences of the words that we use, or allows us to ignore these legal and practical consequences. ...
... 819, 819 (1985))). 23 Hasday, The Canon of Family Law, supra note 13, at 836. 24 See RICHARD A. POSNER, OVERCOMING LAW 178 (1996) (arguing that analogic reasoning "is not reasoning but is at best preparatory to reasoning"). 25 Hasday, The Canon of Family Law, supra note 13, at 827. 26 Inertia may also be at work here. ...
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... Not only are CRT immigration scholars addressing legal issues confronted by citizens of color, but are pointing to similarities and sites of coalition building. Research on white by law was expanded to include CRT immigration legal writings on miscegenation, intermarriage (see e.g., Volpp 1999;Moran 2007), and racial identity (see e.g. Davis 1996;Chang 1998;Okizaki 2000). ...
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