Checking boxes: A close look at mixed-race identity and the law

By Jeny Whalen
U-M Law

Professor Martha S. Jones has long struggled with the idea of checking more than one box. Her reluctance to do so has been influenced by a lifetime of changing perceptions about her own identity. Born to an interracial couple a decade before the U.S. Supreme Court ruled on the legality of such a relationship in Loving v. Virginia, Jones, who co-directs the Program in Race, Law & History at U-M, crossed the color line at birth.

As the featured speaker for Michigan Law’s Martin Luther King Jr. Day lecture last month, Jones reflected on her mixed-race experience to open up an understanding of how legal culture has wrestled with the idea that Americans might check more than one box of racial identity.

“Today I’m going to be asking myself, ‘How does it feel to be a problem?’” Jones said, looking to address the same question contemporaries of W.E.B. Du Bois asked him at the dawn of the 20th century.

For Jones, the answer to this question starts with Loving v. Virginia.

“It has been nearly 50 years since the U.S. Supreme Court struck down anti-miscegenation laws, the oldest and most enduring reflections of the law’s role in constructing race and racism,” Jones said.

“But Loving still lives.”

For students of race and law, she observed, the 1967 case marks the toppling of Jim Crow’s final pillar.

For students of marriage, she said, Loving offers important precedent, legal as well as cultural, for proponents of marriage equality.

For people like herself, “Loving marks the moment when our families, families that transgress law and the color line, became legitimated, permissible, cognizable dimensions of our national landscape.

“Loving said something powerful and new about our parents and the choices they had made about whom to love and with whom to make a family.”

“If American legal culture has adapted well to the changes in marriage that Loving brought, it has done less well reconciling itself to the children of those marriages,” Jones added.

Projecting an image of her birth certificate for the audience, Jones noted her listed race: white. It was assigned, she explained, not by her parents, but rather by the doctor, who made an assumption based on appearance — her mother was white and her father, who was black, wasn’t present in the delivery room, as was the custom in 1958.

Uncovering the error at age 19, Jones said she remembers proposing that the certificate be amended but admits that she later lost her nerve.

“I knew that neither designation, white nor black, was one that I might easily or emphatically claim, and I had no alternative to offer up,” she said. Government at the time had a very limited vocabulary for describing and categorizing multiracial individuals, she added. “The taxonomy of the mid-20th century required that we be squeezed into one box, and it wasn’t always an easy fit.”

The opportunity to check more than one box came with the 2000 census. It also came with a warning from the federal government: Those who refuse or willfully neglect to answer a question to the best of their knowledge, or give an answer that is false, will be fined.

“I learned of these regulations while teaching a class at Michigan—after I had completed my 2010 return,” Jones said. “I can’t remember my own state of mind. I thought, ‘Not only can’t I keep my own boxes fixed in my mind, I’m now liable to federal prosecution if I’ve gotten them wrong.’” But, Jones added, maybe President Barack Obama, who checked only the box for black on the 2010 census, was too.

Only in recent years has Jones come to identify as mixed race — an identity that is today, as it was in the era of Du Bois, still regarded as “a problem,” Jones said.

She cited U.S. Supreme Court Associate Justice Anthony Kennedy’s opinion in Schuette v. Coalition to Defend Affirmative Action, which referenced the nation’s blurring race lines and the issues raised as a result.

“In some ways I suspect there is no neat end to this story or this talk,” Jones said. “There will be more anecdotes and ways to think about how courts, legal culture, and our culture at large think about and grapple with the fact, the possibility, the problem that mixed-race people represent. There is nothing new about regarding mixed-race people as a problem in the United States, and Justice Kennedy adds just one more chapter to that saga.”

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