The Other Loving: Uncovering the Federal Government's Racial Regulation of Marriage
Rose Cuison Villazor
University of California, Davis
New York University Law Review, Vol. 86, p. 1361, 2011
Hofstra Univ. Legal Studies Research Paper No. 11-11
This Article seeks to fill a gap in legal history. The traditional narrative of the history of the American racial regulation of marriage typically focuses on state laws as the only sources of marriage inequality. Overlooked in the narrative are the ways in which federal laws 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 along racial lines. These laws also converged to prevent married couples, many of whom were White American soldiers and local Japanese women, from living in the United States 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 this neglected history, this Article seeks to deepen the conventional account of the public regulation of mixed marriages. As the Article reveals, racial barriers to marriage were far more pervasive than previously acknowledged. Contrary to the familiar chronicle, racial restrictions on marriage occurred through federal laws, were enforced by federal officials, took place beyond state borders, and effected distinct harms on interracial couples whose experiences have largely escaped legal and scholarly inquiry. Recovering this lost history thus provides a more complete story of antimiscegenation regulation. Moreover, it draws attention to the largely undertheorized role that immigration law played in preventing interracial marriages and provides insight into contemporary debates on federal involvement in marriage regulation.
Number of Pages in PDF File: 79
Date posted: March 19, 2011 ; Last revised: December 5, 2011