Still separate but equal?

The terrorist attack on the United States in September 2001 galvanised the powerful sources of integrative sentiment in American political culture, and, because the attack came in the post-1960s civil-rights era, its effect was felt commonly by all Americans. President George W. Bush's rapid appearance at a mosque in Washington DC symbolised the openness of American individualism to members of all groups, religious, ethnic or racial. But beneath this national surface the nuances of membership and nation building endure. In her important and timely study, University of California law professor Rachel F. Moran investigates some of nationhood's most complex aspects.

Interracial marriages have never lost political or social salience in the US. Historically, the states and courts complicitly criminalised interracial unions and stigmatised the children they produced. The first anti-miscegenation law was passed by the state of Maryland in 1661, an action copied by Virginia a year later. From these origins ensued three centuries of legal prohibition on contact between "races", prescriptions complemented by the Jim Crow laws, US Supreme Court rulings and, until the 1960s, many aspects of federal policy. Anti-miscegenation laws were a principal arm of segregationists' and white supremacists' efforts "to establish racial boundaries, contain racial ambiguity and preserve sexual decency". Hysteria over contact across the races was institutionalised in such laws, which converged with a largely pointless search for "race purity", as science was employed to buttress expressions of racial prejudice.

Though often challenged judicially, anti-miscegenation survived largely intact until the Supreme Court's ruling, Loving v . Virginia, issued in 1967. In a unanimous decision, the court struck down a Virginian anti-miscegenation law as a violation of the 14th Amendment's equal-protection clause. Moran provides an excellent account of the long and tortuous road to this final decision. Although the same court had firmly struck down segregation in 1954, it was reluctant to rush into a judgment about interracial marriage. As Moran recognises, such caution was unremarkable given the three centuries of "separate but equal" doctrine practised by Americans. But the court's 1967 decision had a further significance: it flatly rejected lingering eugenic or biological claims about race and opened up the possibility of a renegotiated nationhood transcending such sociological expressions of power.

Such renegotiations are multiple. Moran has an excellent discussion of the vexed problem of adoption, in which a norm of "race matching" has dominated the decisions of professionals and informed the exercise of judicial discretion. In one of her best chapters, she unpacks the intricacies and sensibilities of adoption and foster care decisions. Hence, even though the Supreme Court ruled, in 1984, that race should not be a criterion in decisions about custody, Moran finds that "judges still enjoy considerable discretion to give race as much or as little weight as they deem appropriate". The statistics are startling: 92 per cent of adoptions are same-race, 1 per cent are of white mothers adopting a black child, 2 per cent are of non-white parents adopting a white child and 5 per cent are of a white mother adopting a child who is neither white nor black.

The federal government's efforts to impose clarity was expressed in the Multiethnic Placement Act (1994). It proscribed delaying or denying the placement of a child for adoption or into foster care "solely because of the race, colour, or national origin of the adoptive or foster parent, or the child, involved". But state practice varied widely, with some adhering to rigid race matching, while others discounted such criteria. Subsequent laws reinforced the anti-race matching prohibition, and in 1997 federal regulations outlawed any consideration of "race, culture or ethnicity" in placement decisions. Yet, as Moran shows, these federal injunctions have failed to excise race criteria in local decisions about the placement of children. She warns that "in a country in which racial segregation is a reality, officials must be careful not to reinforce separate but equal families as an ideal".

Desmond King is professor of politics, University of Oxford.