University of Wisconsin Law School
In this Symposium Essay, I use Loving v. Virginia as a backdrop for exploring why our society allows, without legal challenge, customer preference or discrimination to unduly influence casting decisions for actors paired in romantic couples in movies and television. In so doing, I examine how existing anti-discrimination law in employment can and should be used to address these improper influences within the entertainment industry. In Part I of the Essay, I first survey the growing practice of casting intraminority couples casting in films and television and examine how such casting, despite its appeal on the surface, may work to further entrench racial hierarchies in our society. In particular, I focus on how this new form of multicultural couples casting can reinforce the racial hierarchies that existed in the anti-miscegenation statutes that were struck down in Loving v. Virginia, statutes that were struck down because they promoted white supremacy by prohibiting interracial marriages between Whites and non-Whites but not prohibiting marriages with non-Whites of different races. In Part II, I detail statutory law, specifically Title VII, and case law regarding employment discrimination based on customers' preferences to investigate how and when, given the First Amendment, current law can be used to eliminate discrimination through casting in the entertainment industry. This Essay concludes by highlighting the need to and importance of challenging general societal practices that work to maintain racial boundaries of love and intimacy.
There’s Just One Hitch, Will Smith: Examining Title VII, Race, Casting, and Discrimination on the Fortieth Anniversary of Loving v. Virginia,
Wisconsin Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/322