Loving’s Legacy: Decriminalization and the Regulation of Sex and Sexuality

2017 marked the fiftieth anniversary of Loving v. Virginia, the landmark Supreme Court decision that invalidated bans on miscegenation and interracial marriages. In the years since Loving was decided, it remains a subject of intense scholarly debate and attention. The conventional wisdom suggests that the Court’s decision in Loving was hugely transformative— decriminalizing interracial marriages and relationships and removing the most pernicious legal barriers to such couplings. But other developments suggest otherwise. If we shift our lens from marriages to other areas of the law—child custody cases, for example—Loving’s legacy seems less rosy. In the years preceding and following Loving, white women routinely lost custody of their white children when they remarried or began dating black men. That this should happen in the years before Loving is perhaps unsurprising. But one might expect a shift after Loving, when interracial marriages and dating were decriminalized and made lawful. This was not the case. Even after Loving, white women routinely lost custody when they remarried or dated black men. These underexplored child-custody cases illuminate an important aspect of Loving—and indeed, any civil rights effort that is predicated on decriminalization. Despite the turn toward decriminalization and subsequent legalization, the impulse to punish and stigmatize certain conduct does not dissipate entirely. Instead, it may simply be rerouted into other legal avenues where disapprobation of the challenged conduct may continue to be expressed and felt. Recognizing and understanding this “regulatory displacement” phenomenon is critical as we assess the progress of other decriminalization efforts, including the recent struggle to legalize same-sex marriages

Stare Decisis and Remedy

Much ink has been spilled on the Roberts Court’s approach to stare decisis and precedent. Such commentary is hardly surprising. In just the last five years, the Court has overruled extant precedents on issues that range from abortion and jury convictions to property rights and public unions. It has also substantially narrowed and limited existing precedents, curbing the reach of earlier decisions in ways that disrupt and distort the jurisprudential landscape. Some view the Court’s uneven approach to precedent as ideologically determined. As these critics maintain, the Court adheres to precedents that are consistent with the views of its six-member conservative supermajority while jettisoning or narrowing those precedents that do not accord with those ideological priors. This Essay takes a different tack. Specifically, it argues for reading the Roberts Court’s approach to precedent and stare decisis through the lens of remedy. That is, the Court’s treatment of precedent might be understood, whether in whole or in part, as animated by a desire to rectify an earlier error or injustice. To be sure, this impulse is not merely corrective—the Court’s approach to stare decisis goes beyond correcting what it views as jurisprudential errors. Instead, the Court’s approach seems marked by an interest in identifying and righting a past wrong. Recent cases like Dobbs v. Jackson Women’s Health Organization, New York State Rifle & Pistol Association, Inc. v. Bruen, and Ramos v. Louisiana accord with this interpretive frame. In these cases, the Court departed from—or overruled—earlier decisions in part to remedy past racial injustices. Likewise, in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the Court dismissed the extant precedent upholding the limited use of race-conscious admissions policies on the view that “[e]liminating racial discrimination means eliminating all of it.” Viewing the Roberts Court’s approach to stare decisis through a remedial lens is clarifying. It helps us to understand—and better anticipate—the Court’s treatment of earlier decisions. Understanding the Court’s approach to stare decisis as a form of remedy renders more legible the Court’s conception of legal injuries—and, in particular, racialized injuries. As this Essay explains, the Roberts Court’s remedial approach to stare decisis is often deployed to correct what a majority of the Court views as a racial injustice. In some cases, like Ramos v. Louisiana, this remedial impulse focuses on correcting historic injustices wrought by white supremacy and historic acts of racism. But critically, a remedial lens may also render visible a reparative logic that unites a series of recent cases involving religious freedom, gun rights, and affirmative action. Although these cases focus on distinct doctrinal questions, they share a unifying impulse: the Court’s apparent desire to remedy injuries done to Christian conservatives, working-class whites, and, more generally, white people. In this regard, viewing the Court’s decisions through a remedial lens may provide a more coherent account—across legal doctrines—of the Roberts Court’s understanding of discrimination, the injuries it produces, and its apparent victims

Mothers in Law

A Review of Civil Rights Queen: Constance Baker Motley and the Struggle for Equality. By Tomiko Brown-Nagin

Black Marriage, White People, Red Herrings

Ralph Richard Banks\u27s Is Marriage for White People? is worlds away from Agatha Christie\u27s novels. Decidedly a work of nonfiction, Banks\u27s book considers the plight of middle-class African Americans who, according to statistics, are the least likely of any demographic group to get and stay married. Despite these obvious differences, Is Marriage for White People? shares some important commonalities with Agatha Christie\u27s mysteries. Banks seeks to solve a mystery, but red herrings draw attention away from the true issue that should be the subject of Banks\u27s concern. The mystery, of course, is the black marriage decline. In 1950, 78 percent of black families were headed by married couples. In 2007, only 33 percent of black women and 44 percent of black men were married. Though marriage rates are declining across the board, the point remains: African Americans are among the most unmarried racial groups in the United States. Banks asks: How did this happen? How did marriage go from being almost de rigeur among African Americans to being anomalous? Why do African Americans continue to lag behind other demographic groups in marriage rates? And what are the costs of this decline-for blacks and for everyone else? Focusing on middle-class African Americans as a microcosm of the larger black community, Is Marriage for White People? attempts to solve the mystery of the black marriage decline by identifying its causes and consequences. Drawing from over one hundred interviews completed for the project, Banks concludes that the marriage decline and gap are the products of a skewed marriage market in which there is a surfeit of marriageable middle-class black women and a scarcity of similarly situated black men. To correct the market and increase marriage rates, Banks encourages middleclass black women to expand their pool of dating and marriage prospects to include nonblack men. Doing so, he argues, will, in the short term, help middle-class black women find the stable relationships they want. In the long term, this move will help ensure more black marriages (and all of marriage\u27s benefits) in the future. The trouble is that the book presents numerous red herrings that preoccupy the reader and divert attention from the real issue that should be of concern. The pressing public policy issue is not the black marriage decline, interracial marriage, or whether marriage is for white people. Rather, it is whether marriage should be the normative ideal for intimate life and the vehicle by which we confer a range of important public and private benefits. Banks\u27s narrow focus on the black marriage decline prevents him from considering how the naturalization of the marital family as a privatized system of social provision impedes imagining new possibilities that better provide necessary social support and economic stability

Consequential Sex: #MeToo, Masterpiece Cakeshop, and Private Sexual Regulation

The last sixty years have ushered in a tectonic shift in American sexual culture, from the sexual revolution—with its liberal attitudes toward sex and sexuality—to a growing recognition of rape culture and sexual harassment. The responses to these changes in sexual culture have varied. Conservatives, for their part, bemoan the liberalization of sexual mores and the rise of a culture where “anything goes.” And while progressives may cheer the liberalization of attitudes toward sex and sexuality and the growing recognition of sexual harassment and sexual assault, they lament the inadequacy of state efforts to combat sexual violence. Although these responses are substantively different, both evince a sense of the state’s failure. For conservatives, the changes wrought by the decriminalization of “deviant” sexual behavior, the shift to no-fault divorce regimes, and the recognition of constitutional protections for sex and sexuality suggest that the state has abdicated its historic role in imposing consequences on those who do not comply with traditional sexual mores. For progressives (and especially feminists), state efforts to properly regulate rape, sexual assault, and sexual harassment are, at best, anemic and, at worst, utterly ineffectual. As they see it, the state has failed to impose consequences for harassment, assault, and other offensive sexual conduct. But it is not just that these two constituencies believe that the state has failed to properly regulate sex and sexuality; they have also responded in uncannily similar ways to these lapses. Specifically, in response to the state’s failure to regulate, private actors on both sides of the ideological spectrum have stepped into the regulatory void, challenging extant sexual norms and articulating new visions of appropriate sex and sexuality. These private regulatory efforts are evident in the rise and proliferation of conscience objections or exemptions, as exemplified in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, as well as in the emergence of the #MeToo movement. As this Article maintains, conscience objections allow private actors to reject the extant normative regime and instead articulate and enforce their own views of appropriate sex and sexuality through the denial of goods and services. The #MeToo movement has similarly sought to advance an alternative vision of appropriate sex and sexuality through private action. Using social media and the press, the #MeToo movement has identified recidivist harassers and workplaces where sexual harassment and sexual assault are rife, advocated for increased workplace harassment training, and, ultimately, called for the expulsion from the workplace of many high-profile men who, for years, engaged in objectionable conduct. As this Article explains, the fact that private actors are stepping in to regulate in the state’s stead is not necessarily novel. Private actors have often played a regulatory role—particularly in contexts where norms are in flux or contested. Nevertheless, the private regulation seen in Masterpiece Cakeshop and #MeToo evinces a new turn in the regulation of sex and sexuality. In the absence of appropriate state regulation of sex and sexuality, private actors are coming to the fore to take on a more visible role in regulating sex and sexuality, and in doing so, have claimed and recast parts of the public sphere as private space suitable for the imposition of their own norms and values