74 What Does a White Woman Look Like? Racing and Erasing in Law
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74 What Does a White Woman Look Like? Racing and Erasing in Law KATHERINE M. FRANKE [This essay appeared as part of a collection of short articles discussing favorite Supreme Court opinions. Ed.] In significant ways, legal texts produce a narrative of national identity. They weave stories about who we are, what we are committed to, and what we expect of one another, individually and collectively. Certain foundational fictions, like "We the PeopIe ," provide the glue that over time binds a people to its past and to one another as a nation . But should law play the same role with respect to other aspects of human identity? I think not. Current debates surrounding affirmative action, congressional redistricting, the Million Man March, and the appointment of Clarence Thomas to the Supreme Court all represent cultural flashpoints in an ongoing national discussion about two fundamental questions: what does it mean to have a race or be a member of a particular race, and who has the authority to decide? In the service of enslaving, segregating, and subordinating African Americans, law has claimed for itself the authoritative license to tell the story of racial meaning in this country -whether by declaring a certain race of people the status of property, by defining as negro any person who has one drop of negro blood, or by determining that race is a factor that may not be taken into account in the distribution of social goods or political rights because our Constitution is color-blind. Sunseri v. Cassagne1 represents an absolutely fascinating judicial confrontation with the problems of proof that arise when racial identity is litigated in a manner similar to that of, say, property rights. In Sunseri the Louisiana Supreme Court considered an appeal from a trial court order granting the request of Cyril Sunseri, a white man, that his marriage be annulled because, he maintained, his wife was legally negro. Verna Cassagne, the woman Sunseri married and who all agreed was phenotypically white, sought a divorce and alimony because, she insisted, she was white. In 1935, when the couple was married, the state of Louisiana prohibited and rendered void the marriage of any white person to any person having a trace of negro blood. The court was thus faced with adjudicating Verna Cassagne's racial identity. It was presented with this problem only because it took it as given that looking like and identifying as a white person did not mean that one was a white person. Several interesting conse74 TEXAS L. REV. 1231 (1996). Originally published in the Texas Law Review. Copyright © 1996 by the Texas Law Review Association. Reprinted by permission. Copyrighted Material 468 Katherine M. Franke quences flow from this conception of racial identity: If a person could look white, but not be white, then what does it mean to be white? Could one be white but not look white? Perhaps looking white is a necessary yet not sufficient condition of being white. What does a white woman look like anyway? If phenotype is not what racial identity means, then is how you look a representation of racial identity? If so, a representation of what? Finally, who should decide the answers to any of these questions? In determining whether Cassagne possessed a trace of negro blood, the court rejected the reliability of Cassagne's white looks and denied her the authority to declare her own race. Thus, the court had to look to other evidence to prove her "true race"-statutorily defined in sanguinary terms. Because there is no scientific test to determine either the racial makeup of particular blood samples or the percentage of a particular kind of racialized blood that a person has in her veins, racial identity quickly reveals itself to be a metaphor, essentialized through the sign of blood. But how does one go about proving a metaphor? By resorting to anecdote masquerading as objective fact. Given the statute at issue, Cassagne's racial identity was to be resolved atavistically, that is, by focusing upon the racial identity of Verna Cassagne's relatives, particularly her great-great-grandmother Fanny Ducre, a slave. Sunseri maintained she was "a full-blooded negress," while Cassagne swore she was an Indian.2 Both parties relied heavily on anecdotal testimony to show the race of Cassagne's relatives . Cassagne showed that her mother was christened and confirmed as a white person in a white church, educated as a white girl in a white school, registered as a white Democratic voter, patronized...


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