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 [End Page 6] 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 and the attempt by social movements to use it.
But first I note that law does not exist apart from social structures or cultural concepts, including race and gender. These categories exist as social building blocks that intertwine in multiple ways to generate distinctions based on hegemonic notions of race and gender. Take the concepts of illicit versus legitimate sexuality. These concepts informed prosecutions of interracial [End Page 7] couples. Couples "caught" by police or reported as "living in sin" could beat charges of fornication or adultery through marriage. But those prohibited from marriage broke local moral laws and thus were subject to arrest. They also could not protect the transference of property to wives or offspring who had no legal claim to an estate. As Pascoe explains, "By stigmatizing interracial relationships as illicit sex rather than marriage, judges separated interracial intimacy from the notions of contract, choice, and civil rights otherwise associated with marriage and citizenship."5 In essence judges constituted the category of the illicit.
The law thus produced racial and gender categories that disciplined as well as defined. It did so as part of "seeing like a racial state," a concept that Pascoe takes up and adapts from James C. Scott. In Seeing like a State (Yale University Press, 1999) Scott claims that modern states create schemes of legibility to name and hence control populations. His state shares much with that of Michel Foucault, whose concept of governmentality refers to the ways that states seek to produce subjects appropriate to government ends. Such lenses help us analyze clerks at marriage license bureaus; classification systems in census enumerations and vital statistics; bills of state legislatures; and determinations of civil, criminal, and administrative courts.6 These entities form Pascoe's state, a term that she makes real and concrete. They engage in the practices that produce citizens through schema that set or define identity. Clerks and administrators arbitrated "race."
Law's defining power was there at the start. Cultural taboos never kept slave owners from sleeping with the enslaved, but legal prohibitions reinforced racialized slavery by making it nearly impossible for enslaved partners to become wives. During Reconstruction the privileges of White—rather than the freedom of Black—men offered an opening to uphold interracial marriages on the basis of men's rights to convey property and their responsibility to support wives and children. Such litigation revolved around White men and Black women because relationships between White women and Black men required denial to maintain the myth of pure womanhood and racial purity.7 Even into the twentieth century interracial couples involving White women faced greater policing and prosecution than those involving White men: the assumption remained that women of any race were fair game for White men. The politics of respectability reinforced the double sexual standard in which White women who engaged in sex with men of color lost their protective status.
By recovering a trail of "forgotten" civil cases involving Black women and White men, however, Pascoe undermines the reasoning of early twentieth-century lawmakers and judges who claimed tradition and solid precedent as justifications for these restrictions. Instead she highlights the "obstacles" that [End Page 8] proponents of miscegenation bans initially faced. These barriers included assumptions that relegated such laws to slavery times, that "free citizens" had "a contractual right" to marriage, and "that the Fourteenth Amendment really did guarantee equal protection of the laws"—so what was the fuss about?8 These assumptions did not mean that individual Black women actually retained pensions, property, and other forms of inheritance upon the death of White husbands when relatives and even businesses contested their claims and obtained "civil voiding of marriages." As the Montana Supreme Court explained in 1942, "a marriage that is 'void and ineffectual for any lawful purpose in this state … is open to collateral attack in any proceeding wherein the question of its validity may be raised, whether before or after the death of either or both of the parties."9 Even in New York, a state without miscegenation laws, the wealthy family of a White man, Leonard Rhinelander, hoped they could enflame the prejudices of jurors to have his marriage to Alice Jones annulled on the basis of fraud. But the jury did not buy the argument that this light-skinned African American woman had hidden her race from him.10
Of course, the very structure of U.S. governance deflected national power at the key moment of such determinations. Federalism matters in the United States; contending interests struggle over what rights and responsibilities belong with local as opposed to state and national governments. In reaffirming marriage as the province of the states rather than the federal government, the Indiana Supreme Court in 1870 vitiated the reach of the Fourteenth Amendment by defining marriage as a contract that had nothing to do with the guarantee of citizenship rights to the formerly enslaved. "The right, in the states, to regulate and control, to guard, protect, and preserve this God-given, civilizing, and Christianizing institution is of inestimable importance and cannot be surrendered," this Court affirmed, elevating the police power of the state to make interracial marriage a criminal act and providing a green light for Southerners seeking justification for their bans.11
Contests over what constituted "equality" and what counted as "rights" stand at the center of Pascoe's story. Pascoe is particularly adept at untangling the uses and abuses of such foundational concepts in legal history. She illuminates how these terms became racialized as well as gendered. The U.S. Supreme Court itself generated a major obstacle to equal protection claims, the right to equal treatment by similarly situated people supposedly guaranteed by the Fourteenth Amendment, when in Pace v. Alabama Justice Stephen J. Field in 1882 declared, "The punishment of each offending person, whether white or black, is the same."12 The unit of comparison was not intra- versus interracial marriage, but rather all people who break the law versus those who do not. That the case involved a Black man and a White woman not only sexualized [End Page 9] equal protection but also "fueled the perception that 'miscegenation' was something real, definable, and punishable," Pascoe concludes.13 This resolution in Black and White provided a template for an expanded geographical and group reach of miscegenation statutes, though Western states had their own political reasons to deny full citizenship to Asian immigrants, Mexicans, and Native peoples, rooted in conquest, immigration, and property rights.
Pairings involving White women further posed a dilemma for litigators from the National Association for the Advancement of Colored People (NAACP). Formed in 1909, the NAACP initially sought to distance itself from the issue because dependence on White benefactors meant it had to maintain the politics of respectability, especially in the face of attacks purporting that its interracial and cross-sex meetings themselves generated illicit sexuality. But then the scandalous behavior of boxing champion Jack Johnson with a series of White women, culminating in a 1912 indictment under the Mann Act (which prohibited trafficking, or the coerced movement across state lines, of underage women), left the new civil rights group with no choice but to fight a rising tide of legislative proposals to restrict intermarriage. It turned back the assault in the North, but at an ideological cost. "By shifting the blame for race-mixing from interracial marriage to interracial sex, the NAACP turned the logic of the sexualization of miscegenation law against itself," Pascoe observes.14 Women's protection remained central to the argument, but now Black men defended Black womanhood from White rapists rather than the other way around. The NAACP argued that miscegenation laws encouraged illicit sex by relieving White men of any responsibility toward Black women.
Such an argument might lead one to conclude that the real harm from these laws came from their increasing inequality among men, though the NAACP could not express this consequence quite in those terms. For it to claim freedom of choice to marry would evoke the specter of Black men with White women. Given this sexualized and raced landscape, as Pascoe brilliantly points out, fighting miscegenation required the NAACP not only to defend marriage but "to uphold conventional notions of sex and gender."15 So in the 1930s and 1940s prominent Black men who married White women or defended interracial sex, like journalists George Schuyler and J. A. Rogers, reinforced the heteronormativity of marriage. Freedom only went so far, even among generators of "a modern culture that increasingly assigned its fears of unnaturality to homosexuality rather than to race mixture."16
The White woman/Black man dyad also haunted the Japanese American Citizens League (JACL) when it sought "the perfect test case" after World War II. Along with the American Civil Liberties Union (ACLU), it turned to the West, where some lawyers and judges had shown a willingness to question [End Page 10] the validity of miscegenation laws and the reality of racial classification, notably in the 1948 case of Pérez v. Sharp, which overturned California's restrictions on the basis that marriage was "a fundamental right of free men."17 Both the NAACP and the League of United Latin American Citizens (LULAC), which the year before had collaborated on a successful California school desegregation case, avoided involvement in Pérez, which reminded the public of the racial hybridity of people of Mexican descent. At a time when Asian Americans, in contrast to African Americans, were on their way toward becoming the model minority, the JACL and the ACLU not surprisingly preferred plaintiff couples of White men/Asian women, especially White servicemen who had proven their citizenship through battle. JACL lawyers deliberately rejected cases in locales with a noticeable African American population to avoid the prejudice associated with Black/White sexual relations.
Miscegenation law was so powerful, then, because it perpetuated fundamental untruths about race and sexuality. The NAACP's Thurgood Marshall feared such taints would defile his assault on segregated schools. First, the need to generate precedents to strengthen due process arguments made the NAACP cautious about accepting cases challenging miscegenation; it feared "an unfavorable Appellate Court precedent" from an unsympathetic judge turning to Pace v. Alabama. But second, as Pascoe notes, "the closer the NAACP came to eradicating the principle of separate but equal in education, the more southern intransigents defended race segregation in the schools as necessary in order to stave off interracial sex and marriage."18
Education was not the only arena where segregationists deployed the language of miscegenation. As I have argued in a series of essays, opponents of fair employment connected freedom of association, or the right to segregation, with freedom of contract. But freedom of association involved freedom from intermarriage.19 At the close of World War II supporters of states' rights insisted that a permanent Fair Employment Practices Committee (FEPC) meant that the federal bureaucracy would extend its reach from economic to social relations. Democratic representative Clyde R. Hoey of North Carolina, for example, warned, "When you undertake to regulate the private lives of people and their private business with political and police power you are creating a dangerous situation." The FEPC infringed upon employers and union members "to choose their associates," thus "interfering with a peculiarly intimate freedom," an Arkansas representative contended. During the initial attempt to gain postwar congressional funding for the agency in 1944, Democratic representative John Rankin of Georgia asserted, "They want to dictate to you who shall work in your factory, who shall work on your farm, who shall work in your office, who shall go to your schools, and who shall eat at [End Page 11] your table, or intermarry with your children." Minnesota Democratic senator Hubert Humphrey attempted to counter such rants by pointing out, "We are not talking about marital relations. We are not even talking about childbirth. We are talking about employment."20
But miscegenation law undermined such claims as Humphrey's through its own powerful discursive truths that had shaped daily interactions or avoidances on the shop floors of the nation's factories during the war. Commenting on the attitude of White male workers, shipyard diarist Katherine Archibald noted, "The ancient fear of despoliation of women of the privileged race by men of inferior blood … prevailed."21 The proximity of Black men to the place where White women labored—their "indiscreet mingling," according to the Mobile Register—precipitated work stoppages, strikes, and riots in centers of war production. Confrontations spilled outside the workplace; the origins of the Zoot Suit riots in Los Angeles, the Detroit race riot, and smaller incidents presumably involved sexual contact between White women and Black or Mexican American men. In justifying a separate "Negro Auxiliary," one American Federation of Labor official argued, "Our unions give social affairs. You wouldn't want one of 'em dancing with your wife, would you."22
The NAACP reasonably had feared interference from charges of sexualized miscegenation in its assault on segregated schools, so it is perhaps ironic that its success in Brown v. the Board of Education established a more robust interpretation of equal protection that provided a crucial argument against miscegenation statutes. By challenging the validity of racial categories in government actions, this landmark case also laid roots of a colorblind interpretation of the Constitution that assumes an equality among people. With Loving the Court enshrined a version of the Fourteenth Amendment resembling the fiction of equality between wage earners and their employers, which had its roots in the same era that justified miscegenation as equal protection through Pace.
In today's world "freedom of marriage" serves as a new "freedom of contract," ignoring, when not justifying, all kinds of inequalities based on economic, political, social, and other factors, including the material and ideological inheritance of White supremacy and heteronormativity. In placing "the freedom to marry, or not marry, a person of another race … with the individual," without state infringement, Loving has fed into a neoliberal era in which freedom on the marriage market joins the free market to enshrine consumer choice and personal responsibility, no matter the available options or structural constraints.23 But Peggy Pascoe teaches us otherwise: that marriage is no more natural, nor merely an act of individuals, than the law and social policy on which it rests. [End Page 12]
Eileen Boris is the Hull Professor and chair of the Department of Feminist Studies and professor of history and black studies at the University of California, Santa Barbara, where she directs the Center for Research on Women and Social Justice. Her most recent books are Intimate Labors: Cultures, Technologies, and the Politics of Care, coedited with Rhacel Parreñas (Stanford: Stanford University Press, 2010), and, with Jennifer Klein, Caring for America: Home Health Workers in the Shadow of the Welfare State (New York: Oxford University Press, forthcoming). She compiles the "Feminist Currents" column for Frontiers.
1. In keeping with Pascoe's own "grammatical practice," I will capitalize Black and White (Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America [New York: Oxford University Press, 2009], 14).
2. Pascoe, What Comes Naturally, 6–8.
3. Pascoe, What Comes Naturally, 3.
4. Peggy Pascoe, "Miscegenation Law, Court Cases, and Ideologies of 'Race' in Twentieth-Century America," Journal of American History 83 (June 1996): 44–69.
5. Pascoe, What Comes Naturally, 3–4.
6. Graham Burchell, Colin Gordon, and Peter Miller, eds., The Foucault Effect: Studies in Governmentality (Chicago: University of Chicago Press, 1991).
7. Martha Hodes, White Women, Black Men: Illicit Sex in the Nineteenth-Century South (New Haven: Yale University Press, 1997).
8. Pascoe, What Comes Naturally, 49.
9. Quoted in Pascoe, What Comes Naturally, 136–37.
10. Earl Lewis and Heidi Ardizzone, Love on Trial: An American Scandal in Black and White (New York: W. W. Norton, 2001); Elizabeth M. Smith-Pryor, Property Rites: The Rhinelander Trial, Passing, and the Protection of Whiteness (Raleigh: University of North Carolina Press, 2009).
11. Quoted in Pascoe, What Comes Naturally, 56.
12. Quoted in Pascoe, What Comes Naturally, 68.
13. Pascoe, What Comes Naturally, 69.
14. Pascoe, What Comes Naturally, 186.
15. Pascoe, What Comes Naturally, 178, 177, 179.
16. Pascoe, What Comes Naturally, 191.
16. Quoted in Pascoe, What Comes Naturally, 218.
18. Quoted in Pascoe, What Comes Naturally, 203.
19. Eileen Boris, "'You Wouldn't Want One of 'Em Dancing with Your Wife': Racialized Bodies on the Job in WWII," American Quarterly 50 (March 1998): 77–108; Eileen Boris, "'Arm and Arm': Racialized Bodies and Color Lines," Journal of American Studies 35 (2001): 1–20; Eileen Boris, "'The Right to Work Is the Right to Live!' The Rights Discourse of Fair Employment," in The Culture of Rights, ed. Manfred Berg and Martin Geyser (New York: German Historical Institute and Cambridge University Press, 2002), 121–41.
20. "Fair Employment Practice Commission Act," Extension of Remarks of Hon. Clyde R. Hoey of North Carolina, Mar. 29, 1950, Appendix to the Congressional Record, 1950, A3747; "Conciliation and Consultation, Not Coercion, Answer to FEPC Problem," Extension of Remarks of Hon. Brooks Hays of Arkansas, Jan. 31, 1940, Appendix to the Congressional Record, 1940, A672; Mr. Pickett, Congressional Record—House, Aug. [End Page 13] 2, 1948, 9641; Mr. Rankin, Congressional Record—House, May 26, 1944, 5054; Reprint of transcript of American Forum of the Air, "Should We Adopt the Federal FEPC," Extension of Remarks of Hon. James O. Eastland of Mississippi, Apr. 26, 1950, Appendix to the Congressional Record, 1950, A3026.
21. Katherine Archibald, Wartime Shipyard: A Study in Social Disunity (Berkeley: University of California Press, 1947), 70.
22. For the larger argument see Boris, ""You Wouldn't Want One of 'Em'"; quoted in Bruce Nelson, "Organized Labor and the Struggle for Black Equality in Mobile during World War II," Journal of American History 80 (December 1993): 980; Gordon L'Allemsea [sic] to U.S. FEPC, Los Angeles, Nov. 19, 1943, reel 112F, "Boilermakers' Auxiliary Union Issue, 20 Aug. 1943, Exhibit C" folder, Papers of the President's Committee on Fair Employment Practice (FEPC Papers), microfilm edition of RG 228, National Archives.
23. Quoted in Pascoe, What Comes Naturally, 284.