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EVOLUTION OF THE RACIAL IDENTITY OF CHILDREN OF LOVING: HAS OUR THINKING ABOUT RACE AND RACIAL ISSUES BECOME OBSOLETE? Kevin Brown* It is a special honor for me to have this opportunity to discuss the U.S. Supreme Court s opinion in Loving v. Virginia1 at a Symposium held in honor of its fiftieth anniversary. I served on the panel entitled The Children of Loving, 2 which for me has two connotations. First, as an African American who married a white woman twenty years after the decision, I am a child of Loving in the sense that I was in an interracial marriage. But as a father of two black-white biracial children, I am also a father of two Loving children. In this Article, I focus on the latter connotation of the Children of Loving. In particular, I discuss the evolution of my children s racial identities. Due to my personal connections, I can share both an academic and personal narrative about this evolution. Statutes proscribing interracial sexual relationships between blacks and whites first appeared in the English colonies of Maryland and Virginia in the 1660s.3 At least thirty-eight states eventually enacted antimiscegenation statutes.4 One of the main purposes of these statutes was the prevention of mixed-race individuals. This was succinctly stated in the preamble of a 1691 Virginia statute that banished from the colony any free English or other white man or woman who married a Negro, mulatto, or Indian man or woman, * Richard S. Melvin Professor, Indiana University Maurer School of Law. This Article was prepared for the Fordham Law Review Symposium entitled Fifty Years of Loving v. Virginia and the Continued Pursuit of Racial Equality held at Fordham University School of Law on November 2 3, U.S. 1 (1967). 2. For an overview of the Symposium, see R.A. Lenhardt, Tanya K. Hernández & Kimani Paul-Emile, Foreword: Fifty Years of Loving v. Virginia and the Continued Pursuit of Racial Equality, 86 FORDHAM L. REV (2018). 3. F. JAMES DAVIS, WHO IS BLACK?: ONE NATION S DEFINITION 33 (1991); see also Laurence C. Nolan, The Meaning of Loving: Marriage, Due Process and Equal Protection ( ) as Equality and Marriage, from Loving to Zablocki, 41 HOW. L.J. 245, (1998). 4. RACHEL F. MORAN, INTERRACIAL INTIMACY: THE REGULATION OF RACE & ROMANCE 17 (2001). In the West, some of these statutes prohibited whites from intermarrying Native Americans, Chinese, Filipinos, Hawaiians, Hindus, Japanese, and Koreans. But all of them proscribed marriages between blacks and whites. 2773 2774 FORDHAM LAW REVIEW [Vol. 86 bound or free,5 for the prevention of that abominable mixture and spurious issue which hereafter may increase in this dominion. 6 In spite of laws attempting to prohibit interracial sexual conduct between blacks and whites, however, America has always had a significant number of Black Multiracials. 7 As the distinguished historian Carter G. Woodson described it, there was extensive miscegenation in the English colonies before the master race realized the apparent need for maintaining its racial integrity.8 Thus, the question of how to determine the racial identities of Black Multiracials has long vexed American society. Throughout the twentieth century, the predominant unwritten law for determining a person s race was the one-drop rule.9 Under this rule, merely one drop of black blood made a person black.10 Thomas Dixon Jr., author of The Clansman,11 discussed the accepted dogma of one drop of black blood in his 1902 best-selling fictional novel, The Leopard s Spots.12 In explicating the convention, he wrote, One drop of Negro blood... kinks the hair, flattens the nose, thickens the lip, puts out the light of intellect, and lights the fires of brutal passions. 13 Application of the rule meant that there was no such concept of a Black Multiracial but only variations of color and facial features among blacks. Racism was at the core of American society s embrace of this norm; however, the black community always accepted mixed-race people into its ranks. In fact, many of the black community s prominent pioneers were biracial, including Crispus Attucks, Josephine Baker, Frederick Douglass, Prince Hall, P.B.S. Pinchback, Robert Smalls, Bishop Henry McNeal Turner, Booker T. Washington, and Walter White.14 Before Loving, public perceptions about the psychological understandings of the racial identity of Black Multiracials reinforced the notion that they should adopt an exclusively black racial identity. These perceptions were still rooted in the conclusions from the earliest psychological studies of mixed-race persons, which were conducted in the 1920s and 1930s by Robert 5. 3 WILLIAM WALLER HENING, THE STATUTES AT LARGE; BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA, FROM THE FIRST SESSION OF THE LEGISLATURE IN THE YEAR 1619, at (1823). 6. Carter G. Woodson, The Beginnings of Miscegenation of the Whites and Blacks, 3 J. NEGRO HIST. 335, 343 (1918). 7. I use the term Black Multiracials to refer to persons of mixed-race with black blood. This is a matter of convenience for this Article as opposed to a statement about the racial identity of mixed-raced individuals with some black ancestry. 8. Woodson, supra note 6, at JOHN G. MENCKE, MULATTOES AND RACE MIXTURE: AMERICAN ATTITUDES AND IMAGES, , at 37 (1979). 10. Id. 11. See THOMAS DIXON, JR., THE CLANSMAN: AN HISTORICAL ROMANCE OF THE KU KLUX KLAN (1905). 12. See THOMAS DIXON, JR., THE LEOPARD S SPOTS: A ROMANCE OF THE WHITE MAN S BURDEN (1902). 13. Id. at 242. In his pathbreaking article, A Critique of Our Constitution Is Color- Blind, Neil Gotanda also ties the one-drop rule to the notion of racial purity of whites. Neil Gotanda, A Critique of Our Constitution Is Color-Blind, 44 STAN L. REV. 1, (1991). 14. KEVIN BROWN, BECAUSE OF OUR SUCCESS: THE CHANGING RACIAL AND ETHNIC ANCESTRY OF BLACKS ON AFFIRMATIVE ACTION 22 (2014). 2018] CHILDREN OF LOVING 2775 Park and his student, Everett Stonequist.15 Park developed what he called the marginal man hypothesis.16 He concluded that mixed-race individuals were destined to experience social and psychological stress because they existed between social worlds.17 For Stonequist, he noted that in some mixed-race individuals the internal conflict of living with this racial marginality initiates a process of disorganization which finds expression in statistics of delinquency, crime, suicide and mental instability. 18 To this end, the mixed-race person may need to identify with one social world or racial heritage to the nearly total exclusion of the other. Due to the outward appearance of the overwhelming majority of Black Multiracials, the only real racial identity allowed for them was black. The above assumptions about racial identity at the time of Loving meant that American society s primary views on the racial identity of Black Multiracials were straightforward. According to the 1960 census, whites constituted 88.6 percent of all Americans, with an additional 10.5 percent classified as black.19 The one-drop rule, along with this biracial nature of American society, made it easy to determine a person s race based on the color of his or her skin. Accordingly, an individual s racial identity was easily ascertainable, socially ascribed, fixed, and permanent. In effect, both black and white communities agreed that any Black Multiracial was black, and those who rejected their single-race black identity exhibited a psychologically troubling mental condition. Given the understandings about race at the time of Loving, progressive American thinking about race was deeply influenced by the color-blind philosophy. In fact, the color-blind philosophy was built upon the liberal beliefs so familiar to us today. Adult individuals are free willed, rational, autonomous, self-determined, and capable of pursuing their self-formulated goals and objectives. They are able to reflect upon and change the opinions they express, the beliefs they hold, the aims they pursue, and the attachments they form. While there is a manifest self with various physical attributes that is present to the outside world, individuals also possess a hidden, deep, and essential self. It is this part of the self that is the source of our motivations 15. See, e.g., EVERETT V. STONEQUIST, THE MARGINAL MAN: A STUDY IN PERSONALITY AND CULTURE CONFLICT 8 (1937); Everett V. Stonequist, The Problem of the Marginal Man, 41 AM. J. SOC. 1, 12 (1935). See generally Robert E. Park, Human Migration and the Marginal Man, 33 AM. J. SOC. 881 (1928). 16. See generally Park, supra note Id. 18. See Stonequist, supra note 15, at Campbell Gibson & Kay Jung, Historical Census Statistics on Population Totals by Race, 1790 to 1990, and by Hispanic Origin, 1970 to 1990, for the United States, Regions, Divisions, and States 108 (U.S. Census Bureau, Working Paper No. 56, 2002), [ According to C. Matthew Snipp, the instructions for those enumerators stated, A person of mixed White and Negro blood was to be returned as Negro, no matter how small the percentage of Negro blood.... Racial Measurement in the American Census: Past Practices and Implications for the Future, 29 ANN. REV. SOC. 563, 568 (2003) (quoting Claudette Bennett, Racial Categories Used in the Census, 1790 to Present, 17 GOV T INFO. Q. 161, (2000)). 2776 FORDHAM LAW REVIEW [Vol. 86 and drives. This essential self exists separate from the manifest physical characteristics of the individual, including race, ethnicity, gender, sexual orientation, and socioeconomic class.20 This part of the self is the real, true, or subject self. Due to the dominant social connotations attached to being black at the time of Loving, taking a person s race into account was considered immoral since it necessarily constrained the ability of an individual to be self-determined. Thus, the appropriate way to deal with racial identities, including those of Black Multiracials, was for everyone to transcend any considerations of race in order to treat people as individuals. In other words, Americans were encouraged to work toward a long-term goal of becoming color blind. As I write this Article, it is evident that much has changed in American society regarding racial identity since the time of the Loving decision especially for Black Multiracials.21 For me, as an Indiana native, it is important to note that it was not until 1965, when I was nine years old, that my home state repealed its ban on interracial marriages between whites and blacks.22 Violating the state antimiscegenation statute could produce a punishment of a fine of up to $1000 and confinement in jail for up to ten years.23 This explains why I never met a married interracial couple in my youth. Until the time Indiana repealed this law it was also true that I seldom came into contact with white people. They were not in my neighborhood, local churches, nor the parks where I played baseball, swam, or golfed. Moreover, I had attended all-black grade schools in the Indianapolis Public School District (IPS). By all-black schools, I genuinely mean all black. The students were all black, the teachers were all black, the administrators were all black, and the janitors were all black. Furthermore, the federal District Court of the Southern District of Indiana would later agree that at the time I attended schools in IPS it was a de jure segregated school system.24 But my racially exclusive world changed as I started fifth grade in the fall of 1965 when my parents moved our family out to the suburbs of Indianapolis. From that point until I graduated from Yale Law School, blacks never made up more than 10 percent of the student bodies at my academic institutions and, outside of the Afro Studies Department, I had only three blacks as teachers or faculty members for the remainder of any formal education. 20. See, e.g., ROBERT N. BELLAH ET AL., HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (2008); MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE 7 11 (1998). 21. For an extended discussion of the change, see Kevin D. Brown, The Rise and Fall of the One-Drop Rule: How the Importance of Color Came to Eclipse Race, in COLOR MATTERS: SKIN TONE BIAS & THE MYTH OF A POST-RACIAL AMERICA 44, (Kimberly Jade Norwood ed., 2014). 22. Larry D. Barnett, Anti-Miscegenation Laws, 13 FAM. LIFE COORDINATOR 95, 96 (1964); Charles A. Walton, Letter to the Editor, EBONY, Oct. 1965, at 17, [ (state representative describing legislative repeal of Indiana s antimiscegenation law). 23. Barnett, supra note 22, at See United States v. Bd. of Sch. Comm rs, 332 F. Supp. 655, 670 (S.D. Ind. 1971), aff d, 474 F.2d 81 (7th Cir. 1973). 2018] CHILDREN OF LOVING 2777 The Supreme Court announced its decision in Loving on June 12, 1967,25 which was the summer before I started seventh grade. This was also the time when many of my peers and I first started to date. The film Guess Who s Coming to Dinner starring big screen movie legends Katharine Hepburn, Sidney Poitier, and Spencer Tracy was released six months later.26 As notable movie critic Roger Ebert once stated, this was a film about interracial marriage that ha[d] the audience throwing rice. 27 My mother took me to see the movie at the local cinema. She called it the first movie celebrating romantic love between a black person and a white person either of us had ever seen. In fact, this was the first time that my mother had made any comment at all to me about interracial marriage. Up through 1950, when conducting the census, the U.S. Census Bureau employed enumerators to go out to people s homes and fill out the census form. In 1960, the Census Bureau sent the forms beforehand with instructions for the head of the household to fill them out. An enumerator would then come to the home, check the forms, and make any necessary corrections. However, in 1970, the Census Bureau, for the first time, distributed forms designed to be completed solely by respondents and sent back to the Bureau without any assistance from enumerators.28 While the Census Bureau asserted that the change in households filling out the census forms and identifying the races of household members was intended to improve the accuracy of racial statistics, it also began the process of changing the meaning of racial identification. Instead of a census enumerator imposing a racial identity on the members of a household, the requirement that individuals fill out the forms and send them to the Census Bureau on their own raised the issue of how a person identified his or her own race or that of other members of their household. Thus, rather than race being a socially ascribed identity, these new forms raised the possibility of race being a matter of self-identification. Many mixed-race individuals (or their parents or guardians on their behalf) objected to forms that required them to identify with only one racial or ethnic category.29 When I married in 1988, the country had lived with the Loving decision for twenty-one years.30 Interracial marriages especially black-white ones were rising but still rare. The percentage of blacks with a spouse of another race increased from 1.1 percent in 1970, to 2.4 percent in 1980, to 4.1 percent in Despite changes in the process of gathering census 25. Loving v. Virginia, 388 U.S. 1, 1 (1967). 26. GUESS WHO S COMING TO DINNER (Columbia Pictures 1967); see also Guess Who s Coming to Dinner, IMDB, [ BNWM] (last visited Apr. 13, 2018). 27. Guess Who s Coming to Dinner, ROGER EBERT (Jan. 25, 1968), [ 28. See Sharon M. Lee & Barry Edmonston, New Marriages, New Families: U.S. Racial and Hispanic Intermarriage, POPULATION BULL., June 2005, at 3, See Katherine K. Wallman et al., Measuring Our Nation s Diversity: Developing a Common Language for Data on Race/Ethnicity, 90 AM. J. PUB. HEALTH 1704, 1705 (2000). 30. See generally Loving, 388 U.S Lee & Edmonston, supra note 28, at 12. 2778 FORDHAM LAW REVIEW [Vol. 86 data and increasing interracial marriages involving blacks, the one-drop rule remained the unwritten method to determine a person s racial identity. Consequently, when my white wife and I discussed the upbringing of our children, we understood that American society would label them as black. Although I had no problem accepting this, it was not an understanding my spouse shared. She felt that society denied her heritage in her own children. I tried to assure her that our children could privately embrace whatever heritage they desired, but their racial identification was ultimately imposed by society and was not a matter of personal preference. For our children to publicly proclaim that they were not black would strike others in society as a psychologically unhealthy denial of who they were. My wife was not alone in her objections to ignoring the multiracial identity of Black Multiracials. Despite the fact that the instructions to individuals filling out 1990 census forms required that they check the one box that best described their race, more than 500,000 people selected more than one racial category.32 By the late 1980s and early 1990s, individuals in black-white marriages and multiracial groups such as A Place for Us, the Association of MultiEthnic Americans, and Project RACE (Reclassify All Children Equally) spearheaded efforts to add a multiracial option to all local, state, and federal governmental forms, but especially for 2000 census forms.33 At the height of this multiracial movement, these groups had about 3500 adult members (excluding students) throughout the nation, according to Harvard educator Kim Williams.34 But only about twenty movement leaders were responsible for the effort to add a multiracial category to the 2000 census.35 In most multiracial organizations, the leadership positions were held by [w]hite, liberal, and suburban-based middle-class women married to black men.36 Generally, advocates for multiracials argued that mixed-race individuals viewed themselves as multiracial rather than belonging to a single racial or ethnic group. A multiracial designation was, therefore, a better reflection of the true understanding of the multiracial person s racial identity. Advocates pointed to the inherent racism of the one-drop rule,37 and in a total 32. Wendy D. Roth, The End of the One-Drop Rule? Labeling of Multiracial Children in Black Intermarriages, 20 SOC. F. 35, 38 (2005). 33. KERRY ANN ROCKQUEMORE & DAVID L. BRUNSMA, BEYOND BLACK: BIRACIAL IDENTITY IN AMERICA 1 2 (2008); see KIM M. WILLIAMS, MARK ONE OR MORE: CIVIL RIGHTS IN MULTIRACIAL AMERICA 7 9 (2006). 34. WILLIAMS, supra note 33, at Id. 36. Id. at 112. Kim M. Williams, who extensively studied the movement to alter the federal forms to allow individuals to mark one or more boxes, stated: Unexpectedly, I found that white, liberal, and suburban-based middle-class women (married to black men) held the leadership roles in most multiracial organizations. These white women helped to set an optimistic tone for multiracial activism; many believed that American racial polarization could be overcome by their example. Most of these women were looking for community not for a census designation. Movement spokespeople reversed these priorities somewhat, although they parted ways after the OMB decision of Id. 37. ROCKQUEMORE & BRUNSMA, supra note 33, at 1 17. 2018] CHILDREN OF LOVING 2779 rejection of the marginal man hypothesis, these groups also noted the psychological problems created for biracial children when they are forced to identify with one parent more than the other. From 1993 to 1997, the federal government conducted an extensive review of the racial and ethnic categories and definitions it used and required for those reporting information.38 According to the Office of Management and Budget (OMB), the most controversial and sensitive issue during these deliberations dealt with how to address the classifications of individuals with parents of different races.39 In the end, OMB rejected a multiracial category as an o
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