A fortuitous moment to meditate on the value of critical legal studies and critical race theory.
The majority in Loving decided the case not simply on the basis of equal protection, which it could have, but on a "right to marry" that could be infringed upon by States if they could prove a compelling interest. This was not a fatality for each States' right to discriminate.
The Court maintained that "marriage is a social relation subject to the State's police power." The sleight of hand is interesting here: marriage is not merely social, but political, hence the State's power to police it, define it, and enforce its boundaries.
In other words, the court made clear that marriage was not about "love," but a contract concerning politics and economics. Outside of a critical framework, however, we would be made to believe that Loving legalized interracial love.
By representing marriage as a matter of social relation, individual will, and personal choice, the Court "ushered in an era of colorblind segregation," further developing a flexible but narrow interpretation of equal protection.
The definition needed to be flexible not to allow for the expansion of civil rights, but to allow the States to make compelling arguments in the future if they did so appear to violate equal protection in other cases. The Court gave space to justify discrimination in the future.
At the same time, it reinstated the abstract notion of equal protection without addressing the myriad ways equal protection is impossible without equal opportunity. (this goes without mentioning restrictions on polygamy... for which I see no legitimate state interest to restrict)
Marriage markets are defined by other political factors. Unequal access to that market yields the kinds of disparities we see in marriage among black people and poor people compound already existing income and wealth inequity.
Rather than being a victory for racial equality, the Court's application of a seemingly universal and certainly abstract understanding of equality, liberty, and rights contributed to a string of jurisprudence that helped cement inequality as a *matter of liberty.*
This is damning enough from a critical legal studies perspective, but critical race theory has something to add.
The Court maintains that race--because it does not treat it otherwise--is fixed category relating to geno/phenotype rather than a political condition defined by economic access, social honor, and historical inheritance.
In other words, Loving reinscribes race as an ontological fact that cannot be redressed rather than a manifestation of political violence that necessarily needs redress under any real rubric committed to "equal protection." But of course it does:
Two of the most noted juridical legacies of Loving are Bowers v Hardwick and Lawrence v Texas. These decisions narrowed rather than expanded liberty, saying that your private sexual life is not the state's business, but not freeing sexuality from the fetters of "the private."
Lawrence v Texas specifically avoids the likely possibility that the sex act involving the two plaintiffs (one black male, one white male) was an economic exchange. It relies on an assumed romantic relationship between the two men, thereby holding the line on sex work as criminal
In both Loving and Lawrence, to quote Kathleen Franke, "decriminalization does not necessarily mobilize any particular ethical projects... or any ethics at all" but "merely signals a public tolerance of [private] behavior."
Thus, we don't quite have the "freedom" to marry whomever we want, but rather the power (and for some of us a lot more power than others) to enter into a contract that comes with additional powers, privileges, and rights.
Other kinds of family formation remain subterranean and result in penalties related to taxation, the redistribution of wealth, custody of children, access to social safety nets, and so on.
Thus, a case (Loving v Virginia) that appears to be about racial equality is not fundamentally a case about race or equality at all. (The use of both words are misnomers at best and any effect they have on racialized living is incidental.)
We would be taught that Loving was an expansion of freedom, when really it helped solidify a doctrine of colorblindness in a context of ongoing color-based inequality and discrimination. The Court had the power to decide with a more liberating logic and chose not to.
(The VERY short concurring opinion by Justice Stewart is evidence of this possibility. The ability of the majority to ignore Loving in McCleskey v Kemp (1987) is evidence of the ramifications.)
Critical race theory compels us to see these limits--no, that's not right--these machinations of the law, the political interests of its writers, and the ontological commitments of its elaborators. CRT would compel a different, honest, and more expansive jurisprudence.

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More from @thurgoodhamer

11 Jun
@Much2Blaq Cool. I'll come back to this. :)
@Much2Blaq Back.

So, in general, people tend to understand and researchers tend to deploy intersectionality as depicted in the images attached. In these models, categories of difference/identity (race, gender, etc.) are thought to "intersect" to produce a unique social location.
@Much2Blaq Or, in the second graphic, categories of oppression (patriarchy, homophobia, etc.) are thought to intersection to produce a unique social location. By unique social location I mean a significant category of difference (like "working class immigrant man").
Read 22 tweets
17 Mar
"Cishetero manhood is inherently harmful and should be abolished (categorically)"

Sure. And so should cishetero womanhood, and transhetero womanhood, and cisqueer manhood, and--I mean, all of these are Man's categories and the price of entry is always black death.
Ironically, that's why this discourse about abolishing black men works for so many people: what else is it than the symbolic prefiguration of black male death? (And to be clear, I'm all for the abolition of gender, but that's not precisely the same thing, is it?)
This is real "homonationalism in queer times" vibes.
Read 6 tweets
17 Mar
"Abolish black men." These are your bedfellows:
Richard Nixon, recorded in Haldeman's diaries: Image
Daniel Patrick Moynihan: Image
Read 12 tweets
21 Jan
I've found it helpful (pedagogically and in terms of decompression) to recap class on here for myself, so I'm just going to consolidate my former tweets here and keep up this practice (until I no longer find it useful).
Read 120 tweets
21 Dec 20
On intersectionality: plenty has been written about it and plenty more will be. However, there are severe misunderstandings and purposeful misrepresentations of the theory. I'm not going to be an apologist for it here, but I do want to make note a few things re: its mechanics.
Intersectionality is an intervention in critical race theory, which itself was an intervention in critical legal studies. At its core, CLS argues that "the law" is inherently political--that it is not "corrupted by" politics, but rather is politics.
CRTheorists intervened in CLS, noting, essentially, that race is always political, that American politics are never detached from race, and that, therefore, the law is never race-neutral. That is, the law is either racist or aspiring to be anti-racist.
Read 19 tweets
25 Nov 20
This got more engagement than I expected overnight. My general reaction is this: if your takeaway is that she isn't smart, that she hates black men, that there's something wrong with her, you missed the point. This conversation should never become an attack on black women.
She is rehearsing a cultural script, as we all do more than we'd care to admit. What's insidious here is that anti-racist discourse (which she rehearsed here) can often be racist. It is anti-black violence in the cadence of feminism. I'll explain (briefly).
1. Any discourse that makes black people the perpetrators in our collective experiences of racist torture--whether at the hands of police, health professionals, or our more mundane interactions with coworkers and neighbors--obscures our general dishonor.
Read 19 tweets

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