Thursday, April 19, 2018

III. Law's Role in Shaping Racial Preferences

“The heart [may] want[] what it wants” but racial preferences are not shaped in a vacuum. They are influenced by historical and current social and legal norms. The law's explicit role in shaping romantic preferences is extensive. States prohibited marriages between African-Americans and Whites as early as the seventeenth century through the enactment of laws banishing or enslaving Whites who married Black slaves. Although most states did not prohibit interracial sex, these laws signaled that African-Americans were not appropriate romantic partners.

After the Civil War, many more states enacted anti-miscegenation laws. Forty-one states prohibited marriages between Whites and African-Americans at some point. Southern states segregated Whites and non-Whites in public spaces and the federal government maintained segregated offices and military units. The courts enforced laws, private covenants, and practices that denied African-Americans housing and employment opportunities available to Whites. These *132 practices limited opportunities for interracial contact and reinforced social distance between African-Americans and Whites.

The law's explicit regulation of interracial intimacy ended in 1967 with the U.S. Supreme Court's decision in Loving v. Virginia. The federal government also passed legislation prohibiting racial discrimination in employment and housing and attempted to enforce the Supreme Court's decision in Brown v. Board of Education mandating desegregation of schools. Despite these reforms, the legal policies that facilitated race discrimination until the 1960s continue to shape our racial preferences today. Racially restrictive covenants, redlining, and racial steering created the racially segregated neighborhoods and schools that anti-discrimination laws have failed to integrate. These practices, which continue today despite laws prohibiting them, also created the disparity in wealth between African-Americans and Whites that make it impossible for most African-Americans to acquire property in these neighborhoods today. These structural inequalities limit opportunities for African-Americans and Whites to interact as equals and consider members of the other group as potential romantic partners.

The law has also contributed to the dearth of marriageable African-American men. Failing schools and a racialized criminal justice system have led to the mass incarceration of African-American men and rendered them virtually employable and unmarriageable after their release, leaving African-American women to raise children alone (or pursue relationships with men of other races).

The law's active role in facilitating discrimination and its failure to remedy the continuing effects of its discriminatory policies would support state intervention to ensure that African-American children's access to resources and opportunities are not limited by racial preferences that the law helped shape or reinforce. However, even if the law had not played an active role in shaping our romantic preferences, the state's interest in eradicating disadvantages deriving from racial discrimination would warrant intervention to provide children affected by racial preferences with similar opportunities as other children.

Determining how the state should support these children is no easy task given limited resources especially when these children already have greater access to resources and opportunities than significantly disadvantaged children such as those in “fragile families.” At minimum, however, the recognition that despite their relative advantages, racial preferences may disadvantage the children of college educated African-American mothers suggests that the state should support all families *133 regardless of family form. This might be as simple as celebrating all families--married, divorced, blended, cohabitating, and single-parent--and eliminating the message that marital families are superior. Instead of the federal Healthy Marriage Initiative which funds projects that seek to encourage marriage before childbearing, and signals that marital families are superior to other family forms, the federal government should fund a Healthy Families Initiative. A Healthy Families Initiative should, like the current Healthy Marriage Initiative, be part of the federal government's “strategy to enhance child well-being.” However, instead of funding “public advertising campaigns on the value of healthy marriages” as the federal government does now, a Healthy Families Initiative would fund campaigns on the value of healthy families and parent-child relationships. These reforms would redirect funds away from programs seeking to promote marriage (and which have been unsuccessful) and towards programs that support parents regardless of their family structure. The name change alone would signal that all families are valued.

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