- The Supreme Court upheld Michigan's ban on affirmative action
- Law professor Martha Jones was surprised to find mixed-race people part of brief
- It is not new to regard mixed-race people as a problem, the author says
- Jones: Mixed-race people should be able to expect equal protection from the law
I didn't expect to find the specter of the mixed-race person making an appearance in Tuesday's Supreme Court decision that upheld Michigan's ban on affirmative action.
But there it was.
In Schuette v. Coalition to Defend Affirmative Action, Justice Anthony Kennedy, writing for the plurality, cast doubt upon the court's capacity to deliberate over race cases -- and mixed-raced people were said to be the culprits.
Kennedy wrote that "not all individuals of the same race think alike." Fair enough. But then he went on to suggest that mixed-race people confound the court's capacity to "define individuals according to race."
He continued (PDF), "In a society in which those lines are becoming more blurred, the attempt to define race-based categories also raises serious questions of its own."
When we blur the lines, as mixed-race people like me are said to do, are we really undermining the court's capacity to determine questions about the equal protection of the laws?
Kennedy's view feels familiar: There is nothing new about regarding mixed-race people as a problem in the United States.
We can trace this idea to the earliest lawmaking in British colonial America. The first laws to regulate race were those that prohibited sex and marriage across the color line.
Lawmakers in 17th-century Maryland, for example, began to fix the distinction between black and white by punishing freeborn (English) women from marrying enslaved men. Race and labor were becoming linked. At the same time, the law discouraged the birth of mixed offspring who might confound a system in which fixing a person's race also fixed their status.
In the 19th century, the "problem" of mixed-race people and the blurring of the color line became the subject of literature. In the 1842 short story "The Quadroons," by abolitionist Lydia Maria Child, the heroine, Rosalie, was pious, obedient, domestic, beautiful, moral and sensitive.
But Rosalie's mixed-race identity meant she would never marry the white man she loved. She was instead doomed to be unmarried, socially dead, even before her premature demise. The idea of the mulatto as a tragic figure was born.
In the 20th century, filmmaker D.W. Griffith offered up a brutal interpretation of how mixed-race people might corrupt law and politics.
His 1915 film "Birth of a Nation" examined the period just following the Civil War, the era of Reconstruction. Today, historians recognize this as a short but remarkable period during which black and white Americans shared political authority and decision-making. Griffith's interpretation was, to the contrary, an indictment.
The culprits were mulatto men and women who, in Griffith's film, were loyal only to one another and gained political influence by corrupt means. Power-hungry mixed-race people threatened to impose mulatto rule on the South, which, for Griffith, justified the rise of the Ku Klux Klan and the violent overthrow of Reconstruction.
Lawmakers were not far behind, bolstered by pseudo-science of eugenics. The result was a spate of new anti-miscegenation laws that aimed to erase mixed-race people from the national landscape. They criminalized marriage across the color line and put in place what is remembered as a "one-drop rule," deeming persons with any black ancestry to be non-white.
It was, in part, the defective character of mixed-race children that justified these laws. "Half-caste" children were said to be physically inferior, psychologically disadvantaged and socially unassimilable. Lawmakers and scientists agreed that such children put the well-being of the nation at risk.
Kennedy's view feels like a throwback. It was nearly 50 years ago, in 1967, that the U.S. Supreme Court tried to correct the nation's view of mixed-race people. In the case of Loving v. Virginia, the court concluded that the Constitution guaranteed a right to interracial marriage. Anti-miscegenation laws were said to be an unconstitutional infringement upon the fundamental right of marriage. The case legitimized such marriages and, by implication, the families of such marriages.
The court reset the terms by which mixed-race people in the United States were viewed. No longer were they illegal, tragic, a threat or a problem.
In Loving v. Virginia, mixed-race people were pronounced members of families that embodied high constitutional principles. They would enjoy the equal protection of the law.
Or would they?
Kennedy is not alone, it seems, in being puzzled about how to regard mixed-race people under law. The court, in his view, does not know how to regard people who blur the lines, people whose racial identifies do not conform to ideas of racial certitude, people who check more than one box.
Are we entitled to seek equal protection of the laws? In Kennedy's view, no. It's just too complicated.
Still, I felt hopeful as I read Justice Sonia Sotomayor's dissent. In her view, race matters, even when the boundaries are blurred and our identities are not simple or fixed.
She wrote (PDF), "Race matters to a young woman's sense of self when she states her hometown, and then is pressed, 'No, where are you really from?' "
Some will read this statement as autobiographical, as it may be. But it also reflects a broader view about what race is and how it operates in the lives of those who do not neatly fit expectations.
Her question -- "Where are you really from?" -- is a close cousin to the question many mixed-race people regularly encounter: "What are you really?" If Kennedy sought to shut us out, Sotomayor held open the court's door to mixed-race Americans.
More Americans than ever reported themselves as mixed-race on the 2010 census. We cannot be reduced to a problem.
Mixed-race people are, instead, another facet of the nation's complex story of race and rights. Our experiences challenge simple ideas about race and identity in the United States.
To confront this is to, as Sotomayor put it, "stop discrimination (by speaking) openly and candidly on the subject of race ... with eyes open to the unfortunate effects of centuries of racial discrimination."
Who are mixed-race people really?
We are Americans who expect the equal protection of the laws and access to our courts in pursuit of that right.
How do you self-identify? Share your experiences in the comments, on Twitter @CNNLiving or on CNN Living"s Facebook page.