The 2017 Brigitte M. Bodenheimer Lecture on Family Law will feature Melissa Murray, Alexander F. and May T. Morrison Professor of Law and Faculty Director of the Center on Reporoductive Rights and Justice at Berkeley Law.
Loving’s Legacy: Decriminalization and the Regulation of Sex
This year marks the fiftieth anniversary of Loving v. Virginia, the landmark Supreme Court decision that invalidated bans on miscegenation and interracial marriages. In the years since Loving was decided, it remains a subject of intense scholarly debate and attention. In this lecture, I argue that Loving was not simply a case about marriage, it was a case about crime—and specifically, the use of the criminal law to signal public disapprobation of interracial marriages and relationships. The conventional wisdom suggests that the Court’s decision in Loving was hugely transformative—recasting interracial relationships from criminal acts to be scorned and derided into licit marriages worthy of respect and state recognition. But other developments suggest otherwise.
If we shift our lens from marriages to other areas of the law—child custody cases, for example—Loving’s legacy seems less rosy. In the years preceding and following Loving, white women routinely lost custody of their white children when they remarried or began dating black men. That this should happen in the years before Loving is perhaps unsurprising, as interracial marriage and dating were then criminal acts and criminal conduct was a valid basis for denying custody. But one might expect a shift after Loving, when interracial marriages and dating were decriminalized. This was not the case. Even after Loving, white women routinely lost custody when they remarried or dated black men.
These underexplored child custody cases illuminate an important aspect of Loving—and indeed, any decriminalization effort. Despite the strong impulse toward decriminalization, the impulse to punish and stigmatize certain conduct does not dissipate entirely. Instead, it may simply be rerouted into other legal avenues where disapprobation of the challenged conduct may continue to be expressed and felt. As I argue, recognizing and understanding this “regulatory displacement” phenomenon is critical as we assess the progress of other decriminalization efforts, including the recent struggle to legalize same-sex marriages.
Established in 1981 in memory of Professor Brigitte M. Bodenheimer, this endowed lecture brings scholars and practitioners to King Hall to discuss recent developments affecting the family.
This activity is approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of one hour, which applies to the elimination of bias credit. The University of California, Davis, School of Law (MCLE Provider #1127) certifies that this activity conforms to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education. Registration for MCLE credit will begin 30 minutes before the start of the lecture.
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