My last blog post discussed how anti-heart balm statutes have helped fuel the contraction in legal remedies for intimate deception since the early twentieth century. Another reason for this contraction is that some intimate deception claims became normatively unacceptable to the judiciary.
Through the middle of the twentieth century, many courts agreed that a white person was entitled to legal remedies if he had been duped into marriage or engagement with a person who was not “really” white according to the metrics of one-drop rules.
For good reason, courts are no longer willing to provide such redress., a New Jersey annulment decision from 1992, is the modern case that perhaps comes closest to presenting the sort of intimate deception claim about race that plaintiffs once advanced with some regularity. The unhappy husband here sued for an annulment on the ground that his wife had duped him into marriage by deliberately concealing her mother’s “violation of the [Indian] caste system.”
While the Indian caste system differs in many respects from the system of legalized white supremacy and racialized subordination that developed in the United States, the two regimes share important characteristics. The caste system is hierarchical and members of the lowest castes experience systematic discrimination and disadvantage. Castes are hereditary and people usually cannot move from the caste to which they were born, although they can be expelled from it. The caste system also imposes strong social prohibitions on marrying someone from another caste.
The New Jersey Superior Court refused to grant an annulment in Patel, explaining that the state would not accept the premise that transgressing the caste system could constitute “a deficiency in a character trait” sufficient to merit an annulment.
As a general matter,I wholeheartedly agree with Patel that the law should not provide redress where the plaintiff’s alleged harm is grounded in a commitment to caste principles or a racialized world view.
In fact, providing redress for intimate deception about race may actually be unconstitutional. The United States Supreme Court held in(1984) that a Florida court deciding a custody dispute between parents could not take into account whether the child might be subject to community prejudice if she lived with her mother, who had remarried interracially. As the Supreme Court explained, “[t]he Constitution cannot control [racial] prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”
If the Supreme Court insists that the judiciary cannot tolerate the racial biases of private individuals, it is hard to see how any lower court could grant a remedy for intimate deception about race. How could a court hold that such deceit inflicts a legally cognizable injury without recognizing—and functionally accommodating—social prejudices against interracial intimacy? The legal redress once available for intimate deception about race has become normatively, even constitutionally, unacceptable.
— Jill Hasday