Wednesday, March 23, 2011

Villazor on "The Other Loving"

Rose Cuison Villazor (Hofstra University School of Law) has posted "The Other Loving: Uncovering the Federal Regulation of Interracial Marriages." The article is forthcoming in the New York University Law Review (2011).

Here's the abstract:
This Article seeks to fill a gap in the history of the regulation of interracial marriages. The conventional historical account of American antimiscegenation laws locates states as the only sources of marriage inequality. Completely overlooked in the narrative are the ways in which the federal government also restricted racially mixed marriages in the decades before 1967, when the Supreme Court invalidated antimiscegenation laws in Loving v. Virginia. Specifically, during the American occupation of Japan after World War II, a combination of immigration, citizenship, and military laws and regulations led to restrictions on marriages between White American soldiers and local Japanese women. These laws also converged to prevent those interracial couples who were able to get married from living in the U.S. together. Accordingly, this Article claims that the confluence of immigration, citizenship and military laws functioned as a collective counterpart to state antimiscegenation laws.

By unearthing the federal government’s role in restricting mixed marriages, this Article has three aims. First, the Article reveals that proscriptions against interracial marriages were far more pervasive than previously acknowledged. Second, it analyzes how federal laws and administrative regulations that were not designed to prohibit interracial marriages nevertheless operated to prevent mixed race relationships. Third, the Article uses this neglected history to demonstrate why we should be critical of federal involvement in the regulation of marriage. In light of contemporary cases challenging Congress’s discriminatory treatment of same-sex married couples under the Defense of Marriage Act (DOMA), this Article offers prescriptive insights on the federal government’s authority to determine who may get married and what privileges and benefits should be accorded to married couples.
Hat tip: The Faculty Lounge

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