Interracial Marriage

This is part of a seven-part series on Race Relations that are being considered for submission.

The anti-miscegenation laws that were once common in the US received their first major blow in Perez v. Sharp. There, the California Court held that laws banning interracial marriage violated the Equal Protection Clause of the Federal Constitution. Although such a reading seems fairly obvious to those of us who grew up post-Brown, this was not always the case.

After all, a narrow reading of the Equal Protection Clause would only concern laws that single out a group, especially a racial group, for disparate treatment. Interference with the ability to own property, to contract, and the ability to testify were the classic violations thats seemed on the forefront of the minds of those ratifying the fourteenth amendment. On this ground, some still believe that Brown v. Board of Ed was not a faithful application of Constitutional law, although most agree with the result.

Some of those opposing this result reasoned that these laws applies equally to both races. Whites were forbidden to marry blacks, distributing the burden equally. In fact, the burden fell disproportionately on whites, who were forbidden from marrying a number of races. Ironically, this provides evidence of the invidious nature of the discrimination – it was “white blood” that the legislators were concerned with protecting, and it was just fine to “taint” black bloodlines with persons of any other race.

In the wake of the Court’s decision in Brown, Loving v. Virginia was comparatively uncontroversial, or at least tame. SCOTUS finally applied the Equal Protection analysis to anti-miscegenation laws, overturning those state statutes that remained. Ironically, this case presented the opposite of many modern racial EPA claims, in which laws that create explicit racial classifications spring from a benign legislative intent. I am speaking, of course, about Affirmative Action. Just as there are those that hold that the EPA should only be applied to explicit categorization, there are those that would distinguish instead on the purpose of the legislators. Those that evidenced an invidious racially discriminatory attitude, such as laws preventing interracial marriages, should be outlawed. Those that attempt to aid minorities, such as university affirmative action, should be allowed.

While this approach is appealing, it requires a standard not unlike our First Amendment ‘obscenity’ principle. What categorizations are invidious, which are benign? In general, we know them when they see them. While some espouse a ‘legislative intent’ analysis, this approach has several flaws. Legislative intent is notoriously difficult to discern. What i those speaking on the House floor speak of benign motivations, but the majority of those voting do so with prohibited intentions? What if representatives who oppose the measure speak in favor of it, bu include prohibited motivations to weaken its judicial longevity? While a reasoned observer may be able to “see through” such attempts, doing so would bring us back to the “I know it when I see it” approach.

The second means of discerning between the two is in effect. Does this law hurt or help minorities? The anti-miscegenation laws provide a good example of how hard this analysis can be, since that law “hurt” whites more than it did other racial groups. Affirmative action programs that set quotas to mirror societal distribution can be applied to harm Asians. In theory, a state could create a high quality blacks-only law school, enabling segregation to benefit minorities. In these circumstances, an invidious law could help, and a friendly law can hurt.

This problem is compounded by the many situations where it is difficult to tell who is harmed and who is benefited. In the EPA context, this is especially troublesome, since courts are not equipped to do the kind of statistical or other analysis that might be necessary to decide. For example, busing laws that set high school quotas could arguably help the minorities who get the opportunity to go to better schools. But when those programs are mandatory (as some are) a minority could well argue that they are harmed by a long commute to a different community.

So then we are left with the original plan – an ad hoc analysis of intent. This, too, is weakening, as a number of jurists seem more inclined to strike down so-called “benign” racial classifications. Are they simply being faithful to a texualist approach to the constitution? Are they using their position to combat policies they disagree with on an ideological level? And should it matter which?

It might – if only because the textualist approach is susceptible to the same faults of other approaches – use when convenient. While some textualists have applied this approach faithfully against their own ideological interests, this is not a universal trait. However, the tendency of this approach to favor a conservative viewpoint imparts a vague consistency that could well be seen as intellectually coherent.

The alternative is to strike down laws that violate the “spirit” of the 14th Amendment – protection of minorities from discrimination. Ironically, this very approach has been endorsed by textualists in the application of the EPC to other disfavored groups – such as women and gays. Why is there a less rigorous judicial review of such classifications? Because the purpose of the EPC was to end racial discrimination. Therefore, an Equal Protection analysis that disregarded a ‘purpose’ analysis in favor of a formalist analysis (as to whether any racial classification is created) would also require abandoning the ‘purpose’ justification for a less searching review in other contexts.

Here I do not argue for one approach or another. I merely state that of the choices one has to make whether to:
1. Create a bright-line rule that prohibits all categorization, or
2. Look to the intent of the legislation (albeit without any bright-line rule)
entails a choice between formalism and functionalism, a textualist approach that looks to the language of the EPA or to the purpose of its enaction. The choice one makes here, if it is to be done consistently, will dictate the remaining decision to be made in the Equal Protection jurisprudence.

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