Loving Across Borders: Immigration Law And The Limits of Loving

Abstract

Immigration law has been called “segregation’s last stronghold.” Forty years after Loving v. Virginia, the government continues to regulate intimate relationships through immigration law. Examining these contemporary statutes with the same distrust of nativism that the Supreme Court in Loving applied to Virginia’s Racial Integrity Act reveals the ways that barriers to family intimacy posed by current law may continue to perpetuate the racial hierarchies that were targeted in Loving. Part II of this Article briefly reviews some of the ways in which immigration and nationality laws regulated family intimacy in the century preceding the Loving decision. These laws, which expressly countenanced racial quotas and race-based bars to admission and naturalization, operated in tandem with antimiscegenation laws to construct and enforce racial boundaries within the United States. Part III explores contemporary immigration and nationality laws, detailing some of the ways in which formal legal barriers to marriage and intimate family relationships persist under these contemporary laws. Part IV discusses the larger social significance of the legal barriers to intimacy created by immigration and naturalization laws. This Part also illustrates the concrete ways in which the nativism that still undergirds modern immigration and nationality laws frustrates the goal of dismantling state-enforced racial hierarchies. Part V asserts that racial hierarchies cannot be completely eliminated, nor “White Supremacy” completely dismantled, under a constitutional order that too sharply limits its concerns about family to relationships between citizens.