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

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

Abortion, Sterilization, and the Universe of Reproductive Rights

In recent years, a new narrative associating reproductive rights with the eugenics movement of the 1920s has taken root. As this narrative maintains, in the 1920s, Margaret Sanger, a pioneer of the modern birth control movement, joined forces with the eugenics movement to market family planning measures to marginalized minority communities. Although the history undergirding this narrative is incomplete and misleading, the narrative itself has flourished as the debate over the continued vitality of reproductive rights has unfolded in the United States. Indeed, in just the last three years, a member of the United States Supreme Court and a number of lower federal court judges have referenced the alleged links between abortion, contraception, and eugenics in their defense of abortion restrictions. The effort to link abortion and contraception to the racialized logic of the eugenics movement is interesting on a number of fronts. As I have written elsewhere, this narrative is at once a potent defense of abortion restrictions and a more calculated effort to recast the social meaning of reproductive rights from a question of gender equality to one of racial inequality. But equally noteworthy is the narrative’s utter neglect of the eugenics movement’s investment in coercive sterilization—not abortion or contraception—as its preferred vehicle of reproductive control and social engineering. With all of this in mind, this Article seeks to reframe the interest in reproductive rights, racism, and eugenics to include a more robust discussion of sterilization practices. To do so, the Article supplements the historical narrative to clarify that the eugenics movement’s interest in racial betterment was primarily directed at improving and purifying the white race. To the extent the eugenics movement focused on abortion and contraception, it was in limiting middle- and upper-class white women’s access to these vehicles of reproductive freedom on the ground that the reproduction of these constituencies was vital to the future of the white race. Insofar as eugenicists were interested in limiting reproduction, their interest was directed toward those individuals who possessed traits deemed unsuitable for the propagation of the white race—and meaningfully, their preferred vehicle for limiting reproduction among the “unfit” was not contraception or abortion, but rather, sterilization. And even as popular interest in eugenics waned in the 1940s, the state’s interest in sterilization as a means of reproductive control did not abate. Indeed, as the Civil Rights Movement and the welfare rights movement dawned, many states repurposed sterilization to limit the reproductive capacities of those deemed sexually immoral or unduly dependent on the public fisc, usually poor women of color. To underscore the relationship between race, class, dependence, and state-endorsed sterilization, the Article highlights Cox v. Stanton, a challenge to North Carolina’s sterilization program litigated by Ruth Bader Ginsburg, Brenda Feigen Fasteau, and the ACLU’s Women’s Rights Project in the 1970s. Although Cox did not result in the invalidation of state sterilization programs, it—and other contemporary challenges to sterilization abuse—made clear the centrality of sterilization as a technology of reproductive control, as well as sterilization abuse’s racialized impact. In this regard, the nascent effort to associate abortion and contraception with eugenic racism not only equates state-sponsored reproductive abuses with an individual’s decision to terminate or avoid pregnancy, but also overlooks—and indeed, further obscures—the significant history of racialized sterilization abuse in the United States