Legal Fictions Exposed

What Comes Naturally: Miscegenation Law and the Making of Race in America interrogates the cultural, legal, political, economic, and structural position of marriage in U.S. society. It is a stunning achievement, the product of sophisticated thinking and prodigious research. In this wide-ranging history Peggy Pascoe contends that regulation of marriage was fundamental to the development and sustenance of white supremacy. She convincingly demonstrates that this story cannot be confined to a narrow civil rights history that discusses only African Americans and European Americans, those defined as Black and White.¹ Rather, race making occurred through the distinguishing of Malays from Mongolians, as well as the naming of Filipinos and Mexicans as "not white"

Focused on the multiracial West, gender and sexuality, and the law, Pascoe traces the workings of "miscegenation" prohibitions from the 1860s through the 1960s. She uncovers the uses of equality discourse to defend such laws, stresses the significance of race classification systems in applying them, probes the strategies of opponents, and questions the subsequent celebration of Loving v. Virginia, the 1967 Supreme Court decision that made such bans unconstitutional, as the harbinger of racial equality. Pascoe humanizes legal doctrine through the lives of those who found themselves defending—and sometimes attempting to dissolve—their marriages before judges and juries. Though peopled by a cast of memorable characters, What Comes Naturally is about ideas and their consequences: how scientific debates about race and contested notions of rights not only set the terms of legal argument but also shaped the new fiction of colorblindness that blames any lingering discrimination on individuals rather than on social and political structures.

More was at stake in the fight against restrictions on marriage than the triumph of romantic individualism or the right to choose one's spouse. Pascoe emphasizes three myths embodied in these laws: that the laws "were racially equal" because both partners faced punishment; that it was a positive good to uphold "racial purity" through such laws; and that race was a quantifiable, measurable reality that public officials and ordinary citizens alike could determine. In essence these notions claimed that race was biological and that science and reason justified actions taken in its name.²

Behind assumptions of "what is natural" lay social and cultural constructions that reflected, even as they reinforced, dominant power relations. These foundational beliefs reveal processes of racialization but also hegemonic understandings of gender and sexuality, which also appeared "natural." Pascoe argues that "the more Whites believed that interracial marriage was unnatural, the more they assumed that the marriage of one White man to one White woman was the only kind of marriage worthy of the name—and the more they saw their own marriages as the fortunate result of individual romantic preference rather than the obligatory outcome of a legal system steeped in gendered assumptions about race and heterosexuality."³ This insight displays the intersectional thinking at the heart of Pascoe's project; it also helps explain the parallel dilemmas faced by contemporary LGBTQ activists over whether to make equality claims for same-sex marriage or reject marriage as the fulcrum of citizenship rights. In demanding marriage, do such activists reinforce its hegemonic position in law and social practice, crowding out alternative ways of organizing affective life and social reproduction? Do they reinforce the privileging of citizenship rights through marriage? Pascoe's historical narrative suggests such questions by showing how opponents of miscegenation law had to work within legal and cultural contexts that also strengthened traditional marriage.

For more than two decades I have gained inspiration from Pascoe's work. On hearing her early conference papers, I remember thinking, "why haven't we seen that before," admiring her clear yet grounded analysis of race and gender that went beyond the Black/White paradigm and yet illuminated that foundational dyad. In developing the idea of the racialized gendered state, I remain indebted to her writings on the West. Her 1996 article on the construction of racial categories through the law helped me think through sexualized racialization during World War II.⁴ In this reflection on her protean book, I focus on the generative role of law...