Harvard Law School
This Article is an invited special projects paper for the Harvard Civil Rights-Civil Liberties Law Review. It examines how society and law work together to frame the normative ideal of intimate couples and families as both heterosexual and monoracial. This Article sets out to accomplish three goals. First, it examines the daily social privileges of monoracial, heterosexual couples as a means of revealing the invisibility of interracial marriages and families within our society. Specifically, Part II of this Article uses the work of Professor Peggy McIntosh to identify unacknowledged monoracial, heterosexual-couple privileges and list unearned privileges, both social and legal, for such couples. It also uses Professor Kimberlé Crenshaw's theory of intersectionality to explicate how couples in general may experience societal benefits and disadvantages differently based upon various intersections of identity categories. Second, this Article examines housing discrimination law to demonstrate the connection between the daily social disadvantages of interracial, heterosexual couples and families and the lack of legal recognition for interracial couples and families. Specifically, Part III of this Article utilizes housing discrimination law to show how law can ignore the existence of interracial, heterosexual couples, thereby reinforcing an ideal of marriage and family as monoracial. In so doing, this Part explains how housing discrimination statutes assume that plaintiffs will be monoracial, heterosexual couples, and fail to fully address the harms to interracial, heterosexual couples who are subjected to discrimination in housing and rental searches because of their interraciality (i.e., because they have engaged in race-mixing). Part III.A describes the legal framework for evaluating housing discrimination cases, including the means for analyzing discrimination by association cases in court. Part III.B details the categories of plaintiffs who can allege discriminatory action "because of" race, familial status, or marital status under housing discrimination statutes. It then explicates how interracial couples who are victims of discrimination in housing because of their status as an interracial couple alone do not neatly fit within any of these categories. Third, this Article calls for housing discrimination statutes to explicitly recognize interracial couples and families, thereby filling this hole in anti-discrimination law. Specifically, Part IV proposes that legislators add a new protected class category for "interraciality" to housing discrimination statutes. The Article argues that such an addition is the only means by which the law can address the "expressive harms" or lack of dignity that result from the current framing of family in housing discrimination statutes as monoracial. This Article concludes with a call for statutes and rights to be legally framed in a manner that is inclusive, rather than exclusive.
Angela Onwuachi-Willig & Jacob Willig-Onwuachi,
A House Divided: The Invisibility of the Multiracial Family,
Harvard Civil Rights-Civil Liberties Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/308