Love in Black and White

Sex, Marriage, Identity, and Adoption.
By Randall Kennedy.
676 pp. New York:
Pantheon Books. $30.

JUST when Trent Lott has reheated old debates about the racial politics of America’s past, Randall Kennedy arrives with a new book to stir the pot. His goal, he writes, is to help move interracial intimacy to the center of the national conversation about race, so that it will be recognized “as a necessary focus of inquiry for anyone seriously interested in understanding and improving American society.”

That earnest aim may be less important in the end than the sheer profusion of human paradox and legal contradiction that Kennedy serves up in his sprawling book, from an early footnote asserting that Strom Thurmond, the ardent segregationist, fathered a child with his parents’ black maid, to the forgotten fact that until 1910 a Virginian could be up to 24 percent black and still be white by law.

The history of intimacy across the color line begins early in America — even earlier, it is safe to say, than the history of the laws that tried to stop it. Southern colonies were already outlawing interracial marriage in the 1690’s. Wyoming was the last state to prohibit it, in 1913, joining 41 others — every state where the black population reached 5 percent. Though some had repealed their anti-miscegenation laws before the Civil War, 16 still had them on the books by the time the United States Supreme Court finally declared them unconstitutional in 1967.

Nothing is off limits to Kennedy, an African-American professor of law at Harvard whose last book was the provocative “Nigger: The Strange Career of a Troublesome Word.” Navigating the sexual politics of race, including currents of black hostility to intermarriage, he pursues his subject with whatever comes to hand, from old bawdy jokes to the personals columns of magazines. He recalls the awkward silence that fell in his law school classroom when he asked a student opposed to all forms of racial discrimination whether he would condemn a friend who sought romance in an ad specifying race. “The present study results from my efforts to understand, overcome and transform that silence,” Kennedy writes.

Doubling and tripling back through time thematically, he manages to cover centuries of racial tragedy and sexual coercion while remaining buoyantly optimistic. Through old wills and burial arrangements, he finds evidence of interracial love blooming in the stony ground of slavery. In stories of racial passing, he sees the triumph of self-determination more than the burden of secret shame. And he showcases a six-fold increase in black-white married couples between 1960 and 2000 — before conceding that what the statistics actually show is the persistent rarity of such unions.

More than 30 years after the aptly named landmark case Loving v. Virginia invalidated legal barriers to interracial marriage, weddings in black and white represent only 0.6 percent of all American marriages, or 300,000 out of 55.3 million. (The figures are for 1998.) Kennedy cites research showing that over 93 percent of whites and blacks marry within their own groups, compared with about 70 percent of Asians and Hispanics.

Others have viewed these facts more somberly than Kennedy. In the astute and analytical “Interracial Intimacy: The Regulation of Race and Romance,” Rachel F. Moran, a professor of law at the University of California, Berkeley, found lopsided intermarriage rates “strong evidence that black Americans remain a deeply racialized people in the realm of sex and marriage.” From the same figures, the journalist Michael Lind has argued that rather than ushering in a race-blind society, shifting patterns of racial intermarriage suggest that the coming years “may see the replacement of the historic white-black dichotomy in America with a troubling new division, one between beige and black.”

But Kennedy, an avowed “liberal individualist who yearns for a society in which race has become obsolete as a significant social marker,” is more disposed to celebrate the direction of change — and urge it on — than to seek reasons for its slow or uneven pace. “Against the tragic backdrop of American history, the flowering of multiracial intimacy is a profoundly moving and encouraging development,” he writes.

After all, if Virginia had to be forced to drop its ban on interracial marriage, it was also the state where, in 1834, Ralph Quarles, a prosperous white plantation owner and hero of the American Revolution, was buried side by side with his slave Lucy Langston, whom he had emancipated along with their four children. If colonial Maryland decreed that any white woman who married a slave would become a slave herself, that law failed to deter the 1681 wedding of Eleanor Butler, an indentured servant who told Lord Baltimore that she would rather marry “Negro Charles” than Lord Baltimore himself. And if hair texture alone could condemn a foundling with ambiguous racial heritage to slavery, the accidents of physiognomy also allowed some extraordinary escapes: in 1848, with her black husband posing as a servant, Ellen Craft made the journey from bondage to freedom disguised as a white man.

“A well-ordered multiracial society ought to allow its members free entry into and exit from racial categories,” Kennedy contends, and his exploration of racial passing makes for compulsive reading. In one striking example, he details the stellar careers of the fair-skinned children born to Michael Morris Healy, an Irish-born Georgia planter, and Eliza Clark, one of his slaves. Sent north to be educated, one became bishop of Portland, Me.; another rector of the Roman Catholic cathedral in Boston; a third, after study in Europe, became the president of Georgetown University, and a fourth commanded an American ship in Alaskan waters.

Still, their upward mobility was financed by the bondage of the slaves they left behind. Indeed, when a slave woman named Margaret sued for her freedom from the Healy estate in 1856, its agents successfully contested her claim in court, and promptly sold her and three of her children to different bidders.

Kennedy does not make much of Margaret and her children. They appear in a tantalizing footnote, one of the many that help turn this book into such a robust succotash of history, law and popular culture. But in a sense their absence haunts Kennedy’s deeply problematic later chapters, on foster care and interracial adoption.

There, abandoning his evenhandedness, Kennedy presents a one-dimensional account of the problem posed by half a million children in foster care, many of them black. Repeatedly — and misleadingly — he calls them “parentless children.” And he advocates their rapid, race-blind redistribution to adoptive homes that would be predominantly white, arguing that this would benefit both the children and American race relations.

Kennedy seems untroubled that these children’s own parents are overwhelmingly poor and politically powerless, and that the new ones he seeks for them would be more affluent. Absent is any mention of recent cases in which courts found children had been wrongly removed to foster care because their mothers were battered, homeless or ineligible for public assistance. Nowhere is it more apparent that Kennedy’s vision of a race-blind society has a blind spot for economic inequality.

Kennedy relies on the work of his Harvard colleague Elizabeth Bartholet, who dismisses the legal system’s preference for keeping children with their biological families as “blood bias.” But he fails to grapple with the argument made, for example, by Martin Guggenheim in a piece about Bartholet in the Harvard Law Review.

“A child-friendly child welfare policy certainly will regard the forcible removal of children from their families, and particularly the permanent banishment of birth relatives from their lives, as a necessary failure, rather than an outcome worthy of celebration,” Guggenheim writes. “The American commitment to constitutional protection against government intrusion into the intimacy of the family . . . is born out of hard-fought experience. Many commentators in the past generation, including Malcolm X, have compared the ease with which state officials in the child welfare system separate children from their parents, either temporarily or permanently, to slavery.”

At the heart of Kennedy’s brave new book is that chilling contradiction. He celebrates the way desire and family intimacy have defied and evaded state power imposed in the name of social good. Yet in the end he embraces the coercive power of the state to sever family ties permanently and configure new ones in patterns that better fit his own ideal of a better society.


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