Lenhardt on Perez v. Sharp

Robin A. Lenhardt, Fordham, has posted an abstract for a forthcoming essay: Choosing Race and Marriage: The Story of Perez v. Sharp. The essay will appear in the collection Race Law Stories. The essay itself is not online, but Prof. Lenhardt's contact info is at this link. Here's the abstract:

Next year marks the fortieth anniversary of the U.S. Supreme Court's decision in Loving v. Virginia. In the last four decades, the story of the plaintiffs in that case has virtually become common lore. Indeed, most people could identify Loving as an important first, a landmark case in the area of racial equality and marriage. What few people recognize, however, was that Loving was not, in fact, the first case to deem antimiscegenation laws unconstitutional. The first post-Reconstruction case to reach such a conclusion was a 1948 California Supreme Court decision called Perez v. Sharp, and it did so nearly twenty years before Loving.

This chapter, which will appear in an upcoming book edited by Devon Carbado and Rachel Moran entitled Race Law Stories, tells the story of Perez v. Sharp. Parts I through IV detail how the Perez plaintiffs - Andrea Pérez, a Mexican American, and Sylvester Davis, an African American met and fell in love; and provides context for the lawsuit Andrea and Sylvester filed by offering a brief overview of American antimiscegenation statutes and cases, with a specific focus on California. In addition to reviewing the strategies employed by the parties to the Perez lawsuit, the sections also offer an analysis of the California Supreme Court's decision in Perez, explicating Justice Roger Traynor's majority opinion invalidating California's antimiscegenation law, as well as the concurrences and dissenting opinion in the case.

Part V then considers the aftermath of the Perez decision, and provides an analysis of the Perez story. The section explores how Perez, a case with all the hallmarks of a landmark decision, came to be ignored and eclipsed by Loving. Next, it discusses what we might gain from devoting more attention to Perez and its place in equal protection law. While Perez, like Loving, provides an important narrative about intimacy, marriage, and the right to enjoy them on one's own terms, I argue that it also offers much more than this. Unique, in part, because it highlights early efforts to grapple with notions of color-blindness now enshrined in equal protection law, Perez tells us things that Loving on its own could never convey. It provides an insufficiently explored perspective on racial formation in the United States and underscores the illogic of the racial categories that have become so ingrained in our society. Further, Perez - because of what it tells us about the experience of groups such as Mexican Americans - highlights the limitations of the black-white paradigm typically employed in considering antimiscegenation laws and, in doing so, opens other avenues for exploring such laws and questions of race more generally.