Set in a Bathroom: “Purity,’’ Race, Gender, and Sexual Prejudice in Bathrooms from 1887 to Today

By Emilyn Kowaleski

Emilyn is a second year graduate student in the Women’s History Program at Sarah Lawrence College.

The distressed eyes of a young white woman pierce through the camera lens and into the hearts of thousands of North Carolinians. “It’s about privacy. It’s about safety,” she assures them. It is 2016. They are watching an advertisement generated by The Institute of Faith and Family in support of Governor Pat Cory’s Public Facilities Privacy and Security Act commonly known as HB2. The bill proposed that people be legally required to use the restroom that corresponds to their sex assigned at birth, rather than being allowed to use the restroom that corresponds to their gender identity. What the young actress may not know, though the sponsors are likely all too aware, is that the ladies’ bathroom is a space that was engineered for her privacy and her safety alone. It has served her and subjugated her simultaneously. For, wafting from inside the stalls, there lies a strange, sexist history of how and why they first slapped signs on bathroom doors reading “Ladies” and “Gents.” From that odorous origin story, there follows an even messier one. One in which these sex-segregated bathrooms have become battlegrounds through which the “purity” of cis-white women’s bodies are “protected.” All the while justifying and perpetuating fears of Black, gay, trans and non-binary people through the rhetoric of contamination and threats of sexual danger. This is a very abridged history of that bullshit.

In 1870, plumbing evolved enough for the idea of multi-stall indoor restrooms to become a reality. Bathroom segregation in the United States started soon after. In 1887, Massachusetts passed the first law titled Massachusetts Act 668 requiring factories to provide separate restrooms for women, leading the charge for forty other states to follow suit by 1920. (1) Two major shifts were underway. First, young, single, working-class women were beginning to flock to textile mills to enter the workforce. Second, middle- and upper-class women were beginning to organize for their rights. Both these entries into public space were a disruption to separate spheres ideology. Separate spheres ideology heralded the idea that a white woman’s natural purity and virtue was upheld and protected in the home, while a man’s masculinity was to be found in the workplace. (2) While stringent notions of gender roles were once loose philosophy, they became “scientific fact” once women began claiming a place in the workforce, on the podium, and at the polls. Darwin and other scientists began “proving” that gender differences were based in biology, and that women were “naturally” weaker. (3) The Massachusetts bathroom law was part of a larger set of labor laws meant to protect women’s “fragile” bodies through shorter work days, mandated rest periods, and laws that prohibited women from taking certain jobs that were deemed as dangerous. (4) Nancy Cott explains in her article, “Passionlessness, An Interpretation of Victorian Sexual Ideology,” that in addition to being viewed as ‘fragile,’ women were also seen as “passionless” and “morally superior” to men. This idea satisfied both men and women because it afforded women a place in the workforce while allowing men to maintain their dominance. Men viewed women’s purity as something to be protected. (5) 

It was this ideology that ushered the concept of “the ladies room” into public space. The bathroom was only one of many lady specific spaces that emerged in the middle to late 19th century that re-inscribed differences in gender. These spaces were largely middle-class inventions that helped women ensure their protection and respectability as they ventured into metropolises. (6) They included ladies reading rooms, photography studios, hotel parlors, and railroad cars. (7) 

 Not all women, however, were considered “ladies” or welcome in these spaces. In 1884, famed journalist and civil rights activist Ida B. Wells was kicked off a ladies’ railroad car because being Black disqualified her from the definition of “lady.” (8) As historian Eileen Borris argues, historically, definitions of “womanhood” and “manhood” have not been race neutral. Mythological stereotypes have pointed to Black women’s innate impurity and immorality such as the “uncleanly” or “lascivious” Black woman. (9) The myth of the “Black male rapist” is a particularly violent construction that was used to justify the widespread lynching of Black men during reconstruction. (10) While white women used the idea that they were “pure” to claim access to the workplace and public space, they wielded these racialized, gendered stereotypes to position Black people as a threat to their bodily virtue.  

Fast forward half a century to when the job market was racially integrating during World War II. White women used sharing toilets with Black women to attempt to keep them out of the workforce. In 1943, Atlanta segregationists tried to prevent the opening of regional offices for the Fair Employment Practices Committee by refusing office space to the bi-racial staff members who would be using the building bathrooms that were shared with other federal agencies. Later that year, two hundred workers participated in a strike at the Baltimore Electrical Plant over toilet integration, citing that sharing toilets with Black women would make them vulnerable to venereal diseases, which they claimed Black women were more likely to carry. In 1944, Chevrolet Motors hired four Black women. Six white women protested using the same script. 

These gendered, racialized stereotypes seep again from the septic tanks during Jim Crow segregation in the late 1950s and 1960s. Parents used similar arguments to resist the integration of Central High School, stirring fears about the intimate proximity of children’s black and white bodies. In the 1970s, in what was known as “the Potty Parable” arguments against the Equal Rights Amendment were formed from fears that it would allow Black men access to women’s bathrooms. But anti-ERA advocates did not just rest on their resistance to the bill on racist rhetoric. They upheld notions of sexual difference and separate spheres ideology citing the dirt and defilement women would be vulnerable to if forced to share bathrooms with men.  Integration of the sexes, integration of the races, and threats of homosexuality all got spun up into the tornado of immorality they claimed would inevitably destroy the American family. (11)

Sheila Cavanagh argues in Queering Restrooms that “gender impurity” is the discord between gender identity and how the body is interpreted that is policed as profane in order to keep a conception of “gender purity” intact. Bodies that don’t fit our conception of what a “pure” gendered-body looks like – Black bodies, queer bodies, non-binary bodies, trans bodies – have been positioned as threats. Today, anti-trans rhetoric spouts that if people are allowed to use the bathroom that corresponds to their gender, or if we do away with gender-segregated bathrooms that enforce a binary, women will be more vulnerable to sexual assault. These are statistically unsupported claims. Instead, trans and non-binary people, especially those of color, are at much greater risk of violence and harassment in bathrooms. (12) But people continue to place stock in the idea that cis-white women are at risk because it supports a narrative that has existed in various permutations for a long time. It is a narrative that has been architected into the bathroom. Dismantling that architecture means breaking down this narrative tile by tile and examining how these claims to protection form the grout which upholds structural dominance and continues to justify discrimination. 


Notes

  1. Terry S. Kogan, “How did public bathrooms get to be separated by gender in the First Place?” The Conversation, March 21, 2016. https://theconversation.com/how-did-public-bathrooms-get-to-be-separated-by-sex-in-the-first-place-59575
  2. Ibid. 
  3. Jerry Bergman, “Darwin’s Teaching of Inferiority” Institute for Creation Research, March 1, 1994. https://www.icr.org/article/darwins-teaching-womens-inferiority/
  4. Terry Kogan, “Sex Separation in Public Restrooms: Law, Architecture and Gender” Michigan Journal of Gender and Law. 14, no. 1 (2007). 
  5. Nancy Cott, “Passionlessness: An Interpretation of Victorian Sexual Ideology, 1790-1850” Signs 4, no. 2 (Winter, 1978): 232, https://www.jstor.org/stable/3173022. 
  6. Lynne Walker, Vistas of Pleasure: Women consumers of urban space in the West End of London 1850-1900, in WOMEN IN THE VICTORIAN ART WORLD 79 (Clarissa Campbell Orr, ed. 1995) , 86 as cited by Kogan, Sex Separation, 29.
  7. Kogan, Sex Separation, 28.
  8. James West Davidson, They Say: Ida B. Wells and the Reconstruction of Race. (Oxford: Oxford University Press,  2007), 67. 
  9. Eileen Boris, “You Wouldn’t Want one of ‘Em Dancing with Your Wife: Racialized Bodies on the Job in World War II” American Quarterly, Vol.50, No.1 (March,1998), 81 https://www.jstor.org/stable/30041600. 
  10. Angela Y. Davis “Rape, Racism and the Myth of the Black Male Rapist.” in Women Race & Class (New York: First Vintage Books, 1983), 185. 
  11. Donald Matthews and Jane Sharon DeHart, Sex, Gender, and the Politics of the ERA:A State and the Nation (New York: Oxford University Press, 1990), 166. 
  12. Toilet Training: law and order (in the bathroom) directed by Tara Matai (Sylva Rivera Law Project, 2003). 

From Los Angeles to New York: Student Activism and the Fight for Justice

By Marian Phillips

Marian is a first year student in the Women’s History Program at Sarah Lawrence College.

On March 11, 2019, student activists at Sarah Lawrence College swarmed Westlands – the administrative building – at seven in the morning. They called for the college and the administrators to listen to their detailed list of demands which ranged from access to housing opportunities to assistance with international visas. The students announced that they would occupy Westlands until the demands were met; thus began the approximately ninety-hour long occupation. Their chants reverberated throughout the crowded halls, their sleeping bags and textbooks lined the floors, and their courage could be felt across campus and in every single classroom.

Undoubtedly, these students are some of the most determined, inspiring, and emotionally-generous individuals on campus. While I sat in Westlands in support, I began to think of the student activists throughout history and across the nation who have demanded and occupied just as those that surrounded me. The students demanded that administrators better the environment of the institution, which is not an isolated occurrence in any capacity. For instance, at Sarah Lawrence College alone, students have demanded that the college adjust their policies and provide better opportunities and access for students of color since the 1950s with sit-ins occurring in 1969, 1989, and now in 2019.

As I pondered on the idea of writing a piece on the history of student activism, I began to think about the demands made by student activists that came to fruition. Every activist hopes that positive change is realized, but more often than not, feelings of being disheartened and exhausted come from these tireless and courageous efforts. In the hopes of inspiring students to continue making necessary demands, I put the spotlight on the February Sisters of the University of Kansas and the years of activism by students that caused UCLA to create a Chicano/a Studies department.

On February 4th, 1972 at the University of Kansas in Lawrence, KS, the February Sisters – consisting of twenty women and four children – occupied the East Asian Studies department on campus. They called on the institution to provide free daycare that the University would finance, that women fill open positions in the administration, to develop an affirmative action program directed by women, and establish a Women’s Studies department. Directly following the protest, administrators began to meet the demands. The Hilltop Daycare Center was founded in 1972, the Women’s Studies department and Major were developed in 1972, Student Health services began to provide reproductive health options, and Marilyn Stokstad was hired as the associate dean.

The February Sisters’ tireless efforts to have their demands met should not slide under the radar, nor should those of the Chicano/a high school students of Los Angeles. In March of 1968, approximately 20,000 students walked out of their classrooms to protest the racism and the complete disregard of Mexican-American heritage by public school administrators and teachers. Students recognized their power in hitting them where it hurt; money. If the students did not attend their classes, the school lost funding. At this moment, UCLA noticed what they could do to benefit themselves and the Chicano/a community. They started offering Chicano/a Studies courses, and developed the department in the early 90s. As a result, the university marked an increase in enrollment. Without Chicano/a students recognizing their power as students in the cog of the institution, perhaps the department would not have been founded.

The unwavering courage and activism of students makes actual change. From the West Coast, to the Midwest, and all the way to Sarah Lawrence College on the East Coast, students have the power to enact change and cause unjust institutions to reevaluate the entire system. The students that occupied Westlands on March of 2019 will change the landscape of social, political, and cultural conversations at the college forever. They are calling on students, faculty, staff, and administration to recognize systematic racism, how it is perpetuated, and the lack of humanity that can exist in an ivory tower of academia. Just as the February Sisters of the University of Kansas did not rest until their demands were met, and the high school students of Los Angeles witnessed the development of a Chicano/a studies department, these dedicated and passionate student activists will push forward and make necessary demands until the change that needs to occur, does.

  1. “A Statement of Action,” KU Libraries Exhibits, accessed March 28, 2019, https://exhibits.lib.ku.edu/items/show/6835.
  2. “Women’s Rights Activism and Deans of Women at the University of Kansas.” Omeka RSS, exhibits.lib.ku.edu/exhibits/show/deans-of-women/the-february-sisters.

Weekly Feminist Smorgasbord: Vanity Fair, Anti-Choice Race for the Cure, & Jay-Z’s Political Correctness

Happy 2012! We’re back after a long winter break. Here’s a little of what has been going on in feminisms around the web.

Vanity Fair's Hollywood issue emphasizes fresh white faces. via Jezebel

  • The Globe and Mail explores the politics of the b-word, imagining Jay-Z’s lyrics without it after his statement that having daughter means he will no longer use the word. Samhita Mukhopadhyay from feministing.com is quoted:

“There’s an idea that being politically correct ruins art. You don’t want something raw like the lyrical mastery of Jay-Z to be diluted by these PC notions – that women are humans too. … But if we think of the basic reality that women are humans as ‘politically correct,’ we’ve got a major problem.”

  • Jeffrey Goldberg tells us how to spot racism in the Republican campaigns. According to him, “This presidential election will be one of the most race-soaked in recent history.” Here’s a little sample of the kinds of assessments of the black community we can expect from the GOP [trigger warning]:

“[T]he pathologies afflicting black Americans are caused partly by the Democratic Party, which has created in them a dependency on government not dissimilar to the forced dependency of slaves on their owners.”

Keep your eyes out for the February Issue of re/visionist, coming very soon!

Weekly Feminist Smorgasbord: Indigenous People’s Resistance Day

  • I did not celebrate “Columbus Day” on Monday; did you? Let’s leave it to Howard Zinn to say it straight:

To emphasize the heroism of Columbus and his successors as navigators and discoverers, and to de-emphasize their genocide, is not a technical necessity but an ideological choice. It serves- unwittingly-to justify what was done. My point is not that we must, in telling history, accuse, judge, condemn Columbus in absentia. It is too late for that; it would be a useless scholarly exercise in morality. But the easy acceptance of atrocities as a deplorable but necessary price to pay for progress (Hiroshima and Vietnam, to save Western civilization; Kronstadt and Hungary, to save socialism; nuclear proliferation, to save us all)-that is still with us. One reason these atrocities are still with us is that we have learned to bury them in a mass of other facts, as radioactive wastes are buried in containers in the earth. We have learned to give them exactly the same proportion of attention that teachers and writers often give them in the most respectable of classrooms and textbooks. This learned sense of moral proportion, coming from the apparent objectivity of the scholar, is accepted more easily than when it comes from politicians at press conferences. It is therefore more deadly.

All too often industries, sports teams and ignorant individuals legitimize racism under the guise of cultural “appreciation”. There is nothing honorable or historically appreciative in selling items such as the Navajo Print Fabric Wrapped Flask, Peace Treaty Feather Necklace, Staring at Stars Skull Native Headdress T-shirt or the Navajo Hipster Panty. These and the dozens of other tacky products you are currently selling referencing Native America make a mockery of our identity and unique cultures.

  • The Nobel Peace Prize of 2011 has been awarded to three amazing champions of women’s rights: Ellen Johnson Sirleaf and Leymah Gbowee, both of Liberia; and Tawakkul Karman, of Yemen. Read about them and their work here.

Welcome to R/V October 2011: The Legal Issue

Welcome to the R/V LEGAL ISSUE! We are beyond thrilled with the response and popularity of last month’s POP CULTURE ISSUE—we’ve been linked, quoted, and shared from NYC to Beirut—and readership has grown to numbers that exceeded even our highest hopes! Most importantly, we are having so much fun conceptualizing and creating a dialogue that appeals to a WIDE RANGE OF FEMINISMS and the issues that affect us both historically and everyday.

At RE/VISIONIST, we strive to encompass feminism in its most complex form and appreciate it for what it truly is: multi-faceted, diverse, frequently political, sometimes superficial, often hostile, at-times humorous, and above all, the good fight.  WE [as feminists] are just as variable and diverse as feminism itself and our readers are no exception. Just as there is no single most-important feminist argument, there is no one-way to write about feminism.

This month brings us to the litigious-side of inequality, or rather, institutionalized racism and sexism. Law is arguably the most powerful vehicle for social change—and that can work both ways. Revisiting monumental Civil Rights cases such as Loving v. Virginia, while celebrating New York’s legalization of gay marriage, can make it even harder to comprehend present-day (yet seemingly archaic) legal battles. Even more upsetting is the actuality that gendered and racial inequality exists WITHIN the legal framework—and that a lot of those serving to preserve “justice” are some of the most bigoted-people out there—making it even harder to know whose side the law is really on.

That being said–R/V is proud to feature a law review from co-Editor, Amanda Seybold! We’re also proud to welcome Brianna Leone and Emma Staffaroni to the R/V family as web-editors and columnists–you can see from the weekly links, this month’s articles, and the gorgeous editorial pics why we’re thrilled to have them!

Sexism, like any inequality, has several faces—from Pat Robertson to Britney Spears. Sometimes, it’s as blatant as pay inequity and other times it is so embedded in our understanding of how things are that we don’t even notice. This is why we have to work to cover as many bases as possible; we have to include—not exclude—to keep fighting the good fight.

 

{. . . and it IS the good fight.}

xx

Caroline

The Legal Issue:

{ENJOY!}

Miscegenation: A Law Review

Until the Supreme Court’s 1967 decision in Loving v. Virginia, interracial marriage was legally banned in a few states in this country.  Although we may look back and say to ourselves how can that be? That was so recent! the changes in legal thinking that made eradicating all miscegenation laws from the books were actually quite remarkable.  Rather, it was not so much that the legal arguments changed, it’s that the opinions of the Justices in charge of making the decisions changed, and luckily for the better. On the brink of the Court’s landmark Loving decision, two law professors wrote companion pieces of sorts, which were published in the Virginia Law Review.  Alfred Avins’ “Anti-Miscegenation Laws and the Fourteenth Amendment: The Original Intent” takes a strong stand in defense of banning marriage between the races, while Walter Wadlington’s “The Loving Case: Virginia’s Anti-Miscegenation Statute in Historical Perspective” argues that anti-miscegenation laws violate the Constitution and should be struck down.

An issue found in both articles is the lack of attention given to black female agency, in the sense of a black woman’s autonomy over her own fate, particularly as it comes to marital choices.  This is an aspect of analysis that is largely ignored by the authors, who choose instead to write about the laws from the perspective of the white male.  This may stem from a number of factors—including the professions of the authors (lawyers), the drafters of the laws (white men) and a general lack of case law brought to the courts by black women.  These constraints should not automatically yield an assumption that female agency may be ignored, however.   Unfortunately, the professors do not approach the issue of miscegenation law from the position to view it as an inability for a black woman to maintain a certain status in her life.  Rather, they approach it from the male dominated stance, which, while not necessarily lessening the importance of the analysis, does limit it in some respects. 

Alfred Avins, “Anti-Miscegenation Laws and the Fourteenth Amendment: The Original Intent”

One of the best parts about being a student of history is stumbling across that one document that really makes the reader stop, sometimes gape, and really say “huh.” [The one piece that unlocks not only the writer’s personal beliefs, but also the sentiments of the era.]  That, for this reader, was Professor Alfred Avins’ “Anti-Miscegenation Laws and the Fourteenth Amendment: The Original Intent,” which was published in the Virginia Law Review in 1966.[1]  Not only does the article offer incredible insights, albeit one-sided, into the Congressional debates over miscegenation law during Reconstruction and the ratification of the 13th, 14th and 15th Amendments to the U.S. Constitution—but it also serves as an invaluable insight into the legal world during the 1960s at a time when conservatives were doing everything they could to preserve the racism that was so prevalent in the South. This racism was ultimately eliminated, at least as far as marriage was concerned, only one year later with the Supreme Court’s ruling in Loving v. Virginia.[2]  In many respects, the article serves as both a primary and secondary source, making it a true gem among the scholarship about miscegenation law.

The article itself was written and published while Loving v. Virginia was making its way up to the Supreme Court.  On July 29, 1966 lawyers for the Loving’s had submitted an appeal to the Supreme Court asking for the Court’s intervention on a Constitutional question.  Professor Avins’ article was published in the November 1966 issue of the Virginia Law Review, and the state of Virginia filed its response briefs with the Supreme Court on November 18, 1966.  The Court announced that it would hear the case on December 12, 1966 and oral arguments were scheduled for April 10, 1967.  Given these factual circumstances, it is no wonder that Professor Avins, a law professor at Memphis State University, used such strong language in the opening paragraph as “it requires no special perspicacity to see that anti-miscegenation laws are in jeopardy.”[3]  Right from the start Avins makes it clear that the article, published in the very state whose anti-miscegenation law was coming under attack, was a vehement defense of the states’ right “to draw distinctions between the races.”[4]  Despite the fact that it is nearly impossible for Avins to have researched and written the entire article in the amount of time it took for the Lovings’ case to get from the Circuit Court of Appeals to the Supreme Court, it is clear that there was enough discussion surrounding the Lovings’ case that Avins article, while not necessarily a direct attack on the Lovings’ case, was in many ways a response to the potential change in the legal and political environments.

Guess Who's Coming to Dinner (1967) was groundbreaking for its representation of interracial marriage

Avins’ main argument is that the Fourteenth Amendment was never meant to cover marriage between the races.  After chiding the Supreme Court for overstepping its boundaries and noting that the Court should not have the final say on the scope of a Constitutional provision, he turns to the intent of the framers of the Fourteenth Amendment, arguing that “once the original understanding and intent of the framers is ascertained” any further questions about the scope of the Amendment should be laid to rest.[5] Avins looks to transcripts from the Congressional debates over the Reconstruction amendments in order to reach his conclusion about the true scope of the Fourteenth Amendment.  He also notes that “present day attacks on these laws involved no new constitutional principle, and it cannot be said that they involve any questions to which the framers did not in fact address themselves in 1866.”[6]  If that’s not a blatant criticism of the Lovings’ case and potential threats to miscegenation law, what is?

In order to make his case, Avins uses block quotes from many of the Senators and Congressmen who were debating just how many rights to extend to the newly freed slaves after the conclusion of the Civil War.  These quotations themselves are invaluable, particularly as they pertain to female agency, to the study of U.S. miscegenation law as a whole.  Avins argues that miscegenation was only even considered because it was a rhetorical tool used to try to stir up trouble around the proposed extensions of rights to the African-Americans in the 1860s.  One of the arguments against the Fourteenth Amendment’s equal protection was the fear among Democrats that enfranchising black men would lead to more interracial marriages.[7] Along that same line, the Congressmen argued that the Fourteenth Amendment would not touch state miscegenation laws because “the white person [is] equally denied the right to marry the negro.”[8]  This logic is precisely what the state of Virginia relied on, and the Court rejected, in the arguments in Loving; Avins’ intention is clear: don’t rock the boat.

Looking at the combination of current events and historical analysis, Avins’ article becomes much more than merely a descriptive assessment of the Fourteenth Amendment.  It becomes an insight into a world that was on the brink of change and one law professor’s last minute attempt to maintain the status quo.

Walter Wadlington, “The Loving Case: Virginia’s Anti-Miscegenation Statute in Historical Perspective” 

From the opining lines of Professor Walter Wadlington’s 1966 article “The Loving Case: Virginia’s Anti-Miscegenation Statute in Historical Perspective” it is clear where Wadlington stands on the pending miscegenation issue.[9]  He calls Virginia a state “which regularly recalls with glowing sentiment the story of how one of her early white sons married an Indian princess” and notes that it is “with symbolic irony” that the state’s highest court reaffirmed Virginia’s commitment to strict legal codes against racial intermarriage.[10]  In what can only be considered the companion piece to Professor Alvin Avins’ “Anti-Miscegenation Laws and the Fourteenth Amendment: The Original Intent”, Wadlington examines the historical background of the law that was at issue in Loving, namely the Racial Integrity Act of 1924, as well as the ideologies that contributed to the changes in the law.

Wadlington starts his analysis as far back as he possibly could in Virginia law, looking at statutory law from what he calls the colonial period, noting that the first statutory ban on interracial marriage was probably recorded in 1691.[11]  He notes that the punishment for being found guilty of sleeping with a slave was banishment from the colony, but he does not push the idea further ideologically.  He does not include an analysis of why banishment was the favored punishment or even why there was a punishment at all. He does not mention that, as Barbara Fields would note, the act of sleeping with a slave essentially rendered the white partner a slave as well, thus blurring the line between slave and free, and between the races.  Perhaps as a law professor that never occurred to Wadlington.  It may also have to do with the fact that at the time of the article’s publication many still believed race to be immutable.

Wadlington’s historical journey continues through the “present” miscegenation statute, which was enacted in 1924 with very little fanfare.  He does spend a great deal of time contemplating what he calls “the Pocahontas Exception” to the bar on interracial marriage and relationships.  He points out that there was an actual exception to the 1924 Racial Integrity Act, which permitted marriages between white people and those who were “no other mixture of blood than white and American Indian.”[12]  He posits that this exception was meant to protect the descendents of Pocahontas and John Rolfe and leaves it at that.  What he does not do is make a connection between the somewhat privileged and troublesome position that the Native Americans have occupied in much of American law and race politics.  He sees no connection between this exception and the section of the Dred Scott case in which Chief Justice Taney directly addresses the issue of whether or not Native Americans are analogous to African Americans.  In Dred Scott Native Americans are held to not be citizens of the United States, but for different reasons than the African Americans, based on logic that essentially stems from class rather than race.  The same could be argued of this exception to the Racial Integrity Act, that where the act seeks to protect race, it is contradictory and really seeking to protect a privileged class.

After all the historical legwork, Wadlington finally gets to a discussion of the Loving case, which had been scheduled for oral arguments at the time of this article’s publication.  Not only does Wadlington put forth the arguments that would support overturning the miscegenation bans, he also debunks the pro-miscegenation statute arguments, most of which were set forth by Professor Adkins in the same issue of the journal.  In fact, he actually cites Avins’ article in his own footnotes.  If ever there was an illustration of the conversational nature of academia, it is with the two articles.  It almost seems that Wadlington is speaking directly to Avins with a tone one would reserve for a child who declares her intention to dig a hole in the back yard all the way to China.

This is most clear in the brief but elegant conclusion, in which Wadlington states that while “it is possible that the original miscegenation bans served a legitimate purpose at a time when Negroes were essentially an alien part of the community…neither can we justifiably perpetuate those laws under the changed circumstances of our world.”[13]  He clearly seeks to lay to rest the originalist argument that the framers of the 14th Amendment could not have meant for it to apply to interracial marriage and to further the belief in a breathing and adaptable Constitution.  He closes with a powerful call to the Judiciary, with what is perhaps the best line in the essay: “…the Supreme Court should not make it clear that bans on interracial marriage have no place in a nation dedicated to the equality of man.”[14]

{Loving photo courtesy of harpyness.com}
{Pocahontas photo courtesy of williamsburgprivatetours.com}

[1] Alfred Avins, “Anti-Miscegenation Law and the Fourteenth Amendment: The Original Intent”, Virginia Law Review, Vol. 52, No. 7, (Nov 1966), pp. 1224 – 1255

[2] Loving v. Virginia, 388 U.S. 1 (1967)

[3] Avins, 1224.

[4] Avins, 1224.

[5] Avins, 1225.

[6] Avins, 1226.

[7] Avins, 1230.

[8] Avins, 1232.

[9] Walter Wadlington, “The Loving Case: Virginia’s Anti-Miscegenation Statute in Historical Perspective”, Virginia Law Review, Vol. 52, No. 7 (Nov 1966), pp. 1189 – 1123

[10] Wadlington, 1189.

[11] Wadlington, 1191.

[12] Wadlington, 1202.

[13] Wadlington, 1222.

[14] Wadlington, 1223.

Revisiting the Civil Rights Era: Condoleezza Rice & James Bonard Fowler

I wrote this on November 16th but was hesitant to post it due to recent comments on this blog that reeked of racism and a general distaste for addressing white privilege. Upon revisiting it, I decided it is better published than sitting in our draft box.

Two articles on my reading list this morning brought me back to the Civil Rights Era in American History. First, Latoya Peterson at Racialicious did a great review of Condoleezza Rice’s new book Extraordinary, Ordinary People: A Memoir of Family. Peterson highlighted Rice’s lucid details of the salient threats of violence that ravaged Alabama at this time, while also questioning Rice’s foreign policy more recently.

Then, my attention was brought to Robbie Brown of the New York Times, who reported yesterday that Alabama state trooper James Bonard Fowler finally plead guilty to his “fatal shooting” of Jimmie Lee Jackson, a 26-year-old civil rights activist, in 1965. Fowler considers the shooting self-defense rather than murder. While I write a lot about race in US culture, both articles served as a reminder of how recent this struggle, this violent and contentious time, actually is in our history. Continue reading