Race, Gender and Justice: Re-thinking Representation Spring 2002
	Race & Marriage: Loving v. Virginia   Wednesday March 27, 2002

Today we shall be talking about the construction of race and the role that law plays in legitimizing certain ideologies about race.

Peggy Pascoe describes how ideologies of race were reflected in law through the examination of a number of interesting cases involving race and marriage. The cases she refers to are Kirby v. Kirby,  Estate of Monks, Perez v. Lippold, and Loving v. Virginia.

Pascoe also describes how notions of race developed from one of "racialism" to a "modernist racial ideology" of color blindness through a fierce intellectual battle among scientists over the relevancy of culture versus biology in categorizing individuals.

Racialists: first consisted of the scientific racists (people who believed that 'race' was scientifically determined and that they could assign a hierarchy based on this characteristic); then went on to include the culturalists. However the culturalists made the argument both that race was merely about biology (i.e. skin color and personal appearance) and that biology could not objectively make a racial classification with certainty because racial classifications are culturally determined. That is, even though scientifically Asian Indians should be classified as "Caucasian," if a particular Asian Indian had a dark complexion or other physical characteristics then due to the American cultural preoccupation with categorization this person would not be classified as white. Lopez describes these situations clearly in "White by Law." What are the implications for the construction of race when the Courts abandon a scientific rationale for racial classification and adopt a "common knowledge" approach?

Perez v Lippold (1948) was the first case (after Reconstruction) that a state Supreme Court (California) invalidated a statewide miscegenation law. Interestingly, the rationale for the decision was split 3 ways among the 4-person majority who agreed that their state's miscegenation law was unconstitutional, but did not agree on much else. Two justices declared that racial categories were irrational, one justice thought that any law which had racial classifications should be stricken and the last member of the majority thought that the state law infringed upon religious liberties because some religions condoned interracial marriage. This case shows how the ideas of both the culturalists and racialists were incorporated into the law.

Loving v. Virginia is both a due process and an equal protection case. It is the case where the Supreme Court says that the right to marry is fundamental, so that Virginia's "Act to preserve racial integrity" must be declared unconstitutional because it burdens this fundamental right to marry. Thus the law violates the Due Process Clause because it burdened a fundamental right.. Loving is also the cases where the Supreme Court rules that the classifications made by the Virginia law are illegal because they were "designed to maintain White Supremacy," which is not a legitimate governmental aim. Thus the law violates the Equal Protection Clause because the state made a racial classification for a reason which is not good enough to withstand strict scrutiny. The end result of Loving is to show how the modernist racial ideology of "color blindness" or ignoring race became reified in legal discourse.