Two dozen scholars of law, sociology, and history from across the country convened for the two-day Fordham Law Review Symposium, held November 2–3 to mark the 50th anniversary of the Supreme Court’s landmark Loving v. Virginia ruling that invalidated laws prohibiting interracial marriage. The event was presented in conjunction with the Law School’s Center on Race, Law and Justice.
“Fifty Years of Loving v. Virginia and the Continued Pursuit of Racial Equality” featured four roundtable discussions, a pair of keynote addresses, and a screening of excerpts from the HBO documentary, The Loving Story. All examined how the 1967 ruling influenced U.S. society institutionally, demographically, and relationally, and how discrimination continues despite significant increases in interracial marriages and mixed-race populations.
Tanya K. Hernández — who holds the Archibald R. Murray Professor of Law and is associate director of the Center on Race, Law and Justice — served as organizing professor for the symposium. On Thursday, she moderated the symposium’s kickoff roundtable discussion, “Loving v. Virginia in Law and Film,” which included as a panelist the documentary’s director and producer, Nancy Buirski. On Friday, Hernández and Fordham Law professors Robin A. Lenhardt, Leah Hill, and Kimani Paul-Emile shared their insights through three roundtable discussions.
During the second day’s opening panel, “Loving v. Virginia’s Battle Against ‘White Supremacy’ and Segregation Today,” panelists noted that almost two decades before Loving, the California Supreme Court’s ruling in Perez v. Sharp (1948) invalidated the state’s antimiscegenation law. It was the first such ruling against interracial marriage bans in the post-Reconstruction era. In 1951, 29 states had laws banning interracial marriage, with variances for each state. The states’ shared prohibition: marriage between whites and blacks.
Lenhardt, who serves as director of the Center on Race, Law and Justice, remarked that Perez deserves more “love” than it receives—an argument she has made in scholarly articles. She also praised Loving for what it said about white supremacy, noting that Loving provides an important anchor for confronting modern civil rights issues surrounding the Charlottesville white nationalist rally and U.S. Attorney General Jeff Sessions’ policy initiatives against affirmative action.
“Once you have this anchor you can branch out and look at structural issues that we don’t associate with the Loving decision,” Lenhardt said, further explaining how antimiscegenation laws were used as the basis for segregation in housing and schools, among other areas.
The segregation inherent in the pre-Loving 1960s informs the racial disproportionality in today’s child welfare system, said Hill, Fordham Law’s Associate Dean for Experiential Education and an Associate Clinical Professor, during the opening panel.
Compared with white children, black children are more often referred to child protective authorities, investigated by workers, and placed in the system at higher rates and for longer stays, Hill noted. The professionals tasked with mandatory reporting in these cases often do not share the same demographics as the black children at risk of being removed from their homes.
“There is quite a bit of poverty policing on the part of child protective workers in these communities,” Hill said, adding heavier reporting opens the door to value judgments about parenting in situations where inadequate housing and improper food exist. “If we address the conditions of poverty then we would obviously be addressing some of what is considered child neglect,” she explained.
In the 1960 United States census, 99.4 percent of Americans identified as either white or black. Today, 23 percent of the population identifies as neither white nor black. Indeed, many people identify as biracial or multiracial. This post-Loving development has spurred some legal commentators to raise concerns about the need for urgent civil rights reform, citing such laws’ binary foundation on blackness and whiteness, Hernández noted at the outset of her remarks during Friday’s second panel, “The Children of Loving.”
Hernández outlined findings from her forthcoming book, Multiracials and Civil Rights: Mixed-Race Stories of Discrimination (NYU Press), in which she uses employment, housing, and public accommodation cases, among others, to distinguish the actual adequacy of the judicial administration of claims from the theoretical critique proposed by legal scholars pushing for reforms.
“The increase in the number of people identifying as mixed race or multiracial does not present unique challenges to the pursuit of equality, inasmuch as the cases are mired in a long-existing morass of bias toward non-whiteness and its intimate connection to white privilege,” Hernández said. The cases scholars highlight when calling for civil rights reform actually indicate the need for further support for the current structures, she added.
Loving’s impact on interracial parent-child relationships is rarely discussed today, Paul-Emile observed during Friday’s final panel, “Loving v. Virginia, 21st Century Science, and the Ethics of the Biologizing of Race,” because the ruling is often viewed thru the prism of romantic love.
Paul-Emile, who serves as associate director of the Center on Race, Law and Justice, focused on Cramblett v. Midwest Sperm Bank, a wrongful birth claim in which a white couple sued after ending up with an interracial daughter. The case, she explained, offers a framework to consider the operation of race and the cost of blackness in America. More specifically, it makes explicit how blackness in America operates like a disability, in line with the social model of disability where something stands between a person and their social environment.
The Crambletts sought to reclaim the expenses of leaving their all-white neighborhood for fears of discrimination and bias and finding an integrated school for their child. In addition, their daughter would likely bear the costs of being black in America—lower wages, earlier death, and higher unemployment risk.
“The Cramblett lawsuit is largely about the loss of white privilege,” Paul-Emile argued. “Whiteness is conceptualized in this lawsuit as a property right that the couple was denied, and this may explain in large measure why they sued and their case was initially found legitimate.”
Earlier on the event’s second day, William Zabel, a drafter of the Loving brief and partner at Schulte Roth & Zabel, and University of California–Berkeley Law Professor Melissa Murray delivered keynote addresses.
The Fordham Law Review will publish papers presented during the symposium in spring 2018.