The Multiracial Epiphany of Loving |
The Multiracial Epiphany of Loving
Fordham Law Review
May 2008, Volume 76, Number 6
pages 2709-2733
Kevin Noble Maillard, Associate Professor of Law
Syracuse University
The year 1967 becomes the temporal landmark for the beginning of an interracial nation. That year, the United States Supreme Court ruled state antimiscegenation laws unconstitutional in Loving v. Virginia. In addition to outlawing interracial marriage, these restrictive laws had created a presumption of illegitimacy for historical claims of racial intermixture. Not all states had antimiscegenation laws, but the sting of restriction extended to other states to forge a collective forgetting of mixed race. Defenders of racial purity could depend on these laws to render interracial relationships illegitimate. Looking back to Loving as the official birth of Multiracial America reinforces the prevailing memory of racial separatism while further underscoring the illegitimacy of miscegenations past. By establishing racial freedom in marriage, Loving also sets a misleading context for the history of mixed race in America. Even though Loving instigates the open acceptance of interracialism, it unintentionally creates a collective memory that mixed race people and relationships did not exist before 1967. To imagine and realize a pre-1967 miscegenated America directly challenges the legal legitimacy of the racial reality that antimiscegenation law attempted to enforce. I approach this subject by examining contemporary claims of mixed race that are rooted in the past. This conflict usually entails opposing narratives: one venerating the involvement of a prominent historical figure as party to an interracial relationship; the other steadfastly holds that such claims are unfounded as specious. Placing miscegenation upon narratives and figures that are faintly characterized and understood as racially white turns private claims of mixed identity into public contemplations of interracial intimacy. To imagine historic figures as “Founding Fathers” of another sort destabilizes an implicit understanding of ingrained racial limitations.
..This essay takes issue with the overemphasis on Loving as the enabler for mixed race in the United States, and concomitantly, its effect on legitimating a varied interracial past. Gary Nash’s thesis demonstrates a notable irony: if our just, democratic system openly permits and justifies the “happening thing” of mixed race, why is this same valorization and recognition not extended to the pre-Loving era? Turning to a single court case to celebrate a social phenomenon that has existed at the margins of American culture mistakenly erases the past of racial amalgamation that preexisted the legality that Loving provided. In the system of the racial binary that has been established in the United States, mixtures that disrupt the notion of racial purity, particularly those that originate in the time period before Loving, are presumed to be deviant and abnormal. The collective racial memory in the United States, unlike that of Mexico or Brazil, operates from an assumption of racial purity and sexual avoidance of miscegenation. This national culture of disbelief of racial intermixture has permeated our views of history and law.
This essay argues that looking to Loving as the birthplace of interracialism reinforces the legal authority and resultant legacy of the antimiscegenation regime that it replaced. In addition to outlawing interracial marriage, these restrictive laws created a lasting presumption of illegitimacy for historical claims of racial intermixture. Defenders of racial purity could depend on these laws to render interracial relationships, whether married or unmarried, improbable and illegitimate. Not all states had antimiscegenation laws, but the sting of restriction extended to other states, forging a collective forgetting and denial of the existence of mixed race. The absence of a national, judicial acceptance of mixed race facilitated a collective belief in racial purity. Because it was illegal and immoral, it could not have occurred. As states were withholding the marital right from biracial couples, they attempted to deny and erase the intimate reality of persons, like Richard and Mildred Loving,who would have sought alternatives to the prohibitive law…
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Tags: Fordham Law Review, Kevin Maillard, Kevin N. Maillard, Kevin Noble Maillard, Loving v. Virginia