Which paints a more accurate picture of the state of race relations in America:  the stated aspirations of opponents of affirmative action for a "color-blind society," or the explicit racial preferences revealed in the vast majority of the personal ads that run in our newspapers?  Arguably, the latter.   The anonymity of personal ads forces many advertisers to state explicitly the very same racial prejudices that they deploy when meeting people face-to-face (see "Savage Love," inset), thereby making visible the reality that racial differences continue to play a central role in both public and private life in America.  The pervasiveness of blatant racial discrimination in the "private sphere" of intimate relationships exposes the limits of America's commitment to a color-blind society, and strongly suggests that current campaigns against affirmative action are motivated by less noble aims.

-- Andrew Chin

Student Note
Reprinted from Harvard Law Review, vol. 107 (February 1994)

[I]n the core of the heart of the American race problem the sex factor is rooted; rooted so deeply that it is not always recognized when it shows at the surface. Other factors are obvious and are the ones we dare to deal with; but, regardless of how we deal with these, the race situation will continue to be acute as long as the sex factor persists. . . . It may be innate; I do not know. But I do know that it is strong, and bitter.

James W. Johnson, Along This Way ⁽¹⁾

Imagine opening the Sunday classified section of the local newspaper and reading the following:

FOR RENT -- Furnished basement apartment. In private white home. Call JO3- 5493. ⁽²⁾

Most readers, white and black, would be surprised. They are less likely to be surprised at the landlord's desire for white tenants than at the landlord's willingness to advertise this desire. ⁽³⁾ Indeed, to advocate publicly desirability on the basis of race is unthinkable for many Americans. ⁽⁴⁾ Why, then, is it that an advertisement that reads

Single white male seeks white female ⁽⁵⁾

does not similarly shock the reader? Likewise, why is the advertiser comfortable with this public pronouncement of racial preference? The answer, many would argue, is simple: in forming intimate relationships, race should be relevant, ⁽⁶⁾ and the advertising of racial preference thus should be privileged. This Note suggests a rethinking of this "simple" response and argues that such advertising creates harms that should be weighed against its worth.

Part I of this Note explores the social and stigmatic harms caused by the use of racial signifiers in personal ads. In Part II, the value to advertisers of such signifiers is set forth, and weighed against the harms they cause. Part III considers the implications of possible state regulation of this conduct and suggests that the Constitution favors the continued freedom to express racial preferences in personal ads. Ultimately, this Note concludes that, although racial steering in the romantic marketplace is beyond the reach of state regulation, its existence should not be blithely ignored. By looking more carefully at this often overlooked practice, one can discern separatist and stigmatizing messages that must be addressed and overcome.

I.  Racial Signifiers in Personal Advertisements:  The Problem

An informal survey of several popular publications demonstrates that, in the majority of personal ads, the advertiser explicitly designates the race of desired respondents. ⁽⁷⁾ Despite the pervasive presence of such explicit race-based distinctions -- a practice that in other instances signals cause for alarm ⁽⁸⁾ -- the use of racial signifiers ⁽⁹⁾ in the personals receives little scrutiny. ⁽¹⁰⁾ Perhaps this is because relationships formed via personal ads fall within the most intimate sphere of social relations, and in this sphere discrimination is understood to be so essentially private as to be outside the scope of regulation. The "private" nature of the conduct does not render it harmless, however. Indeed, the use of racial signifiers in personal ads can lead to several harms.

A.  Stigma

Stigma refers to the injury sustained when conduct or words imply the inferiority of a particular group. ⁽¹¹⁾ This implication of inferiority harms the individual in two ways: it "inflict[s] psychological injury by assaulting a person's self-respect and human dignity, and [it] brand[s] the individual with a sign that signals her inferior status to others and designates her as an outcast." ⁽¹²⁾ Although stigma has traditionally been recognized when state involvement -- direct or indirect -- legitimizes discriminatory behavior by placing the authority of the state behind it, stigma can also result from the actions of private individuals. ⁽¹³⁾

Having identified the characteristics of a stigmatic injury, it is necessary to determine the source of stigma. Some have argued that stigma is linked to the intent of the actor responsible for the allegedly stigmatizing act; if the actor does not intend to assert the inferiority of the excluded group -- in essence, to stigmatize -- then her conduct cannot give rise to harm. ⁽¹⁴⁾ According to this view, personal ads may not be stigmatic if advertisers do not intend to assert the inferiority of the excluded group. Indeed, the advertiser, by using a racial signifier, may simply be expressing her preference for a certain race. Such an expression of preference, it can be argued, is no different from an expression of preference for a capricorn instead of a pisces, or a poet instead of an attorney; these preferences say no more about the dispreferred than that they lack some trait that the advertiser desires.

But preferences may not be so easily distinguishable from racial animus. Indeed, exonerating conduct by alleging that it is based on mere preference recalls the rationale that underlay the Supreme Court's decision in Plessy v. Ferguson. ⁽¹⁵⁾ In upholding Louisiana's racial segregation of railroad passengers, the Court concluded that such segregation reflected only the preferences of the races. ⁽¹⁶⁾ If blacks found that "the enforced separation of the two races stamps the colored race with a badge of inferiority," the Court explained, "it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." ⁽¹⁷⁾ As has become clear, however, "preferences" -- at least racial preferences -- often stem from a belief in the intrinsic inferiority of the excluded group. ⁽¹⁸⁾ Consequently, the expression of preference can indeed stigmatize.

Admittedly, Plessy is a more obvious case of preference that masks racial animus than is the use of racial signifiers in personal ads. Even if the use of racial signifiers does not reflect the advertiser's belief in the inferiority of the excluded group, however, the use of such signifiers may nonetheless be stigmatizing. Despite the claims noted above, the stigmatizing effect of an act does not necessarily stem from the actor's intent. As Charles Lawrence has argued:

[t]he injury of stigmatization consists of forcing the injured individual to wear a badge or symbol that degrades him in the eyes of society. But in most cases the symbol is not inherently pejorative. Rather, the message obtains its shameful meaning from the historical and cultural context in which it is used and, ultimately, from the way it is interpreted by those who witness it. ⁽¹⁹⁾

Consequently, to discern stigma it is necessary to evaluate the conduct at issue to "determine whether it conveys a symbolic message to which the culture attaches racial significance." ⁽²⁰⁾

In certain contexts, the "symbolic message" of racial signifiers in advertising will be easy to discern. Imagine an advertisement that reads "computer company seeks white programmers." Against an historical background of discriminatory treatment of blacks in employment, this advertisement evokes demeaning images: racist presumptions about the intellectual inferiority and social undesirability of blacks and the belief that blacks do not belong in professional jobs. Situated within its cultural context, the stigmatic message is readily apparent.

Similarly, if personal ads containing racial signifiers are placed within their cultural context, it is possible to identify an invidious cultural meaning. Take, for example, a personal ad in which an advertiser seeks a member of his same race -- "black man seeks black woman," or "white man seeks white woman." Historically, same-race relationships have been accepted as the norm, a part of the natural order; in this context, one might think that there is no stigmatizing exclusion here. But what underlies this notion of the "natural" order? Beliefs in the naturalness of same-race relationships stem, at least in part, from centuries of moral and legal prohibitions of interracial unions. ⁽²¹⁾ These prohibitions, in turn, reflect deeply ingrained notions of racial purity and supremacy. ⁽²²⁾ The perpetuation of a system developed to preserve hierarchical roles ratifies and reinforces the stigmatizing message behind the original prohibitions. ⁽²³⁾

Advertisements in which members of the majority group seek members of that same group -- that is, "single white male seeks white female" -- may contain an additional stigmatizing assertion of minority inferiority. The necessary correlate of "white male seeks white female" is "single white male does not seek black (or Asian or latina) female." Whatever the intent of the advertiser, such exclusions evoke cultural notions of attractiveness that are premised on a white ideal; ⁽²⁴⁾ the white female is desired because she represents all that American society considers desirable. The stigmatic message -- that non-white is unbeautiful or undesirable -- may not be immediately discernible because it has been reduced and encoded in the phrase "seeks white female"; an easily recognized stigmatizing message has been abbreviated. Nonetheless, it retains the power to stigmatize. Stigma may also result when minorities advertise for members of the majority group because such conduct again reflects and reinforces stigmatizing notions of the excluded group's unattractiveness and undesirability. ⁽²⁵⁾

It is not only same-race ads that create stigma; even when white men break the color barrier and seek minority women, the resulting ads may convey stigmatic meaning. Take the example "Viking man in search of nubean [sic], latin or asian princess." ⁽²⁶⁾ This advertisement could reflect an integrationist advertiser eager to form transracial unions. Regardless of the advertiser's intent, however, this ad is set within an historical context of slavery and colonialism, in which white men have traditionally viewed minority women as concubines or chattel. ⁽²⁷⁾ Personal ads that articulate white desires for minority women can evoke similar historic images. ⁽²⁸⁾

B.  An Impediment to Integration

A second potential harm of racial signifiers in personals is that they may serve as an impediment to social integration. ⁽²⁹⁾ This argument rests on the premise that integration is a social good and, consequently, that increased integration enhances the social welfare. ⁽³⁰⁾ Given this premise, the use of racial signifiers in personals detracts from the ideal when it inhibits integration.

To allow advertisers to specify the race of desired respondents in personal ads may impede racial integration both practically and symbolically. Practically, when advertisers seek respondents of the same race, ⁽³¹⁾ there is a reduced likelihood of cross-racial interaction. That is, when a white person advertises for a white companion, there is little chance that the advertisement will result in a black-white union. In contrast, ads that lack signifiers increase the potential for black-white interaction; this potential for increased interaction may, in turn, increase integration both socially and residentially.

Admittedly, the above analysis is hypothetical, and the impact of personal ads on human behavior is unclear. Racial signifiers may prevent one interracial relation or one hundred or one thousand. Regardless of their actual effect, however, there is an invidious symbolic effect. The use of signifiers indicates that race is important enough to the advertiser to include it in her list of desired characteristics. Such inclusion emphasizes the significance of race and implicitly condones the notion that race should be relevant in relationships. ⁽³²⁾ The perpetuation of this belief ensures a racially stratified society. ⁽³³⁾

Racial signifiers do not simply convey the message that race is relevant. Because the majority of ads that use racial signifiers are those in which advertisers seek members of the same race, the subtext of this "race is relevant" message is often that same-race unions are ideal, which in turn perpetuates the belief that whites should be with whites, blacks with blacks, Asian-Americans with Asian-Americans, and so on. This vision again reduces potential cross-racial interaction and contributes to increased racial division. Moreover, this belief is not restricted to the context of intimate relations, but is replicated in other areas. ⁽³⁴⁾

C.  Perpetuation of the Economic Status Quo

If it is agreed that the use of racial signifiers impedes opportunities for cross-racial interaction, then this conduct has an economic impact as well as a social one. Race mixing advances equality of economic opportunity in two distinct ways. First, because members of minority groups are economically disadvantaged as compared to many white Americans, ⁽³⁵⁾ it is possible that racial intermarriage will result in some redistribution of wealth. ⁽³⁶⁾ As with the impact of racial signifiers on integration, the accuracy of this assertion can be challenged. If, for example, the majority of individuals who meet through the personals are from the same economic class, then the resulting redistribution of wealth may be minimal. The redistribution of monetary wealth will be similarly limited if individuals who meet through the personals do not marry. However, there is a second economic benefit to be reaped from cross-racial relations that is not dependent upon marriage or unequal monetary wealth for its success: trans-racial relations often offer increased access to business contacts and opportunities. ⁽³⁷⁾ Interactions with people in the economic mainstream increase access to economic power; as Theodore Cross observes, "[t]he right place to be is always in close proximity to the events and people who control employment opportunities, credit, admissions, and access to institutions of all kinds." ⁽³⁸⁾

II.  Individual Motivations

The use of racial signifiers in personal advertisements may have a stigmatizing impact on the excluded group. Moreover, such signifiers may perpetuate the notion that racial group members should "be with their own kind," which in turn may lead to increased social segregation and economic stratification. It is possible, however, that racial signifiers in personal ads serve valuable purposes that outweigh any harms they pose. This Part explores these purposes, and weighs the social costs and benefits of this conduct. There are several possible motives that lead advertisers to specify the desired race of respondents:

A.  Racial Animus

An advertiser using a racial signifier may be motivated by racial animus, a subjective distaste for a particular racial group. The advertiser signals her dislike of this segment of society by excluding them from those with whom she desires to interact. A broad distaste for a group in its entirety fails to consider the merits of each individual, and thus deprives persons of their individual dignity; consequently, invidious dislike is generally regarded as immoral. ⁽³⁹⁾

When the state is motivated by invidious dislike of particular groups, its actions violate the Constitution. ⁽⁴⁰⁾ Absent state action, however, "[s]o far as the Constitution goes, a private person may engage in any racial discrimination he wants." ⁽⁴¹⁾ But because conduct is constitutionally permissible does not necessarily mean that it is socially desirable. ⁽⁴²⁾ Determining desirability involves balancing the harms and values of the conduct at issue.

Ultimately, the relevant question emerges: is it socially desirable to allow individuals with invidious motives to signify race in personal advertisements? As noted, there are social costs to this conduct because it may stigmatize and segregate. These harmful effects, combined with the basic immorality of invidiously motivated conduct, suggest its undesirability; indeed, there is "less reason to believe there is a moral right to make biased choices when they produce harmful consequences." ⁽⁴³⁾ Moreover, this conduct may be inconsistent with the social ideal that holds that individuals should be judged "by the content of their character," and not by the color of their skin.

However, even when racial signifiers reflect racial animus, there are countervailing values to their use, the most important of which is individual autonomy. It is popularly accepted that the state and its citizens should allow individuals a degree of autonomous personal space in which to order their affairs; ⁽⁴⁴⁾ by prohibiting the most intimate acts of discrimination, society intrudes too far into this space. ⁽⁴⁵⁾ Most would agree that the right to choose a lover or spouse would fall within a protected "moral space." ⁽⁴⁶⁾ Thus, intrusions on this freedom of choice -- in this instance by prohibiting individuals from freely structuring their intimate relationships -- would also be intrusions on private autonomy.

As with most arguments concerning rights, this "moral space" argument is premised on a normative balancing; to forbid the state from intruding on personal affairs beyond a certain level reflects the decision to privilege autonomy over other social values. ⁽⁴⁷⁾ As Morton Horwitz has asked, "to what extent [should we] immunize a realm of 'private' rights if it produces clearly deleterious social consequences?" ⁽⁴⁸⁾ The decision whether to permit racial signifiers will thus rest upon a normative judgment about whether the autonomy values that inhere in the use of racial signifiers outweigh the attendant equality-based harms identified in Part I.

B.  Race As Proxy

Advertisers may specify a desired race as a proxy for other, unnamed characteristics. For example, the white woman who seeks a white man may actually be seeking someone who sails, plays golf, and likes the music of the Beach Boys. Rather than make her desires explicit, the advertiser assumes that whites are more likely than blacks to share these tastes and uses race as an abbreviation. Stephen Carter refers to this conduct -- "the awareness of skin color and the belief that it can have other than aesthetic import" -- as "racialism." ⁽⁴⁹⁾

The social value of racialism can be challenged on several grounds. First, the assumption that race signifies anything beyond the color of one's skin has often been contested. ⁽⁵⁰⁾ Even allowing an identifiable relationship between race and cultural character, the use of race as a proxy is nonetheless morally questionable. The most obviously troublesome are inaccurate proxies -- proxies that fail to correlate with the trait sought -- because they perpetuate false stereotypes. ⁽⁵¹⁾ In the case of personal ads, the harm in the perpetuation of untruths may be minimal -- for example, few individuals are likely to be injured by the stereotypes of white Americans as people who enjoy golf or sailing. The greater harm in racialism, however, lies in the threat it poses to the individual autonomy of the members of the stereotyped group. "The attempt to predict an individual's behavior seems to reduce him to a predictable object rather than treating him as an autonomous person." ⁽⁵²⁾

This threat to autonomy inheres in accurate proxies as well. ⁽⁵³⁾ But it is difficult to prohibit the use of such proxies because they are often efficient; ⁽⁵⁴⁾ in the case of personal ads, the advertiser can communicate exactly what she seeks with only one word. In light of the social harms of such signifiers, however, it would not impose an unjustifiable burden on this advertiser to require that she state explicitly those characteristics that she seeks; the cost to the advertiser would be little more than the price of a few more lines in a personal column. Ultimately, the cost to the proxy discriminator of forgoing the proxy is less than the cost individuals will bear as a result of the proxy discrimination.

C.  Fear of Social Condemnation

In a society that often disapproves of miscegenation, interracial couples face hostility and condemnation. ⁽⁵⁵⁾ Advertisers may choose to avoid these hostile responses by seeking relationships only with those of the same race. But does social reaction render the use of racial signifiers justifiable?

When constitutional rights are involved, courts refuse to bow to negative social pressure, for "[t]he vindication of rights guaranteed by the Constitution can not be conditioned upon the absence of practical difficulties." ⁽⁵⁶⁾ However, the choice between acknowledging and disregarding societal reactions is less clear in the instance of racial signifiers in personal ads. If societal hostility were acknowledged -- and individuals were consequently permitted to use racial signifiers -- there would be no ensuing deprivation of a constitutional right. The conduct is not harm- free, however; there is a stigmatic injury that might merit ignoring societal reaction and prohibiting the conduct. But disregarding societal reaction imposes costs of its own; ⁽⁵⁷⁾ in this instance, if social reaction were disregarded -- and racial signifiers prohibited -- the advertiser might be socially ostracized for selecting a respondent from a different race. The imposition of this cost is not a certainty, however. Even if racial signifiers were banned from personal advertisements, such a restriction would not mandate that the advertiser choose a different-race respondent; it would only burden her search for a same-race respondent. Such a burden does not clearly outweigh the stigma perpetrated by racial signifiers; nor does the harm of this acknowledgment clearly outweigh the burdens imposed when societal reaction is disregarded. When the optimal balance is impossible to calculate, policy arguments may favor disregarding popular opinion when such opinion is invidiously motivated. ⁽⁵⁸⁾

D.  Aesthetic Desires

Advertisers, by specifying the race of respondents, may simply be expressing aesthetic preferences. In this context, advertising for a black man is analogous to advertising for a man who is six feet tall -- both advertisements reflect nothing more than an attraction to certain physical traits. According to this view, the advertiser is not suggesting that the unwanted group is of lesser moral worth, nor is she basing her action on stereotypes. ⁽⁵⁹⁾ For this reason, advertisers who operate from a stance of aesthetic preference would not appear to harm the unwanted group.

Aesthetic preferences do not necessarily arise naturally or from a neutral source, however. Consequently, such attractions are not always innocuous. Instead, "aversions and attractions also may be rooted in [ancient biases, in] moral ideals or in stereotypes that now operate subconsciously." ⁽⁶⁰⁾ Take, for example, an advertisement in which a white man advertises for a white woman. As noted above, ⁽⁶¹⁾ this aesthetic preference may reflect cultural conceptions of whiteness as the ideal and the corresponding rejection of non-whiteness. ⁽⁶²⁾ As one commentator explains, "[j] udgments about aesthetics do not exist apart from judgments about the social, political, and economic order of a society. They are an essential part of that order. Aesthetic values determine who and what is valued, beautiful, and entitled to control." ⁽⁶³⁾ As such "judgments," advertisements can stigmatize minority group members by perpetuating and reinforcing the idea that non-white is undesirable. ⁽⁶⁴⁾ Moreover, because rejection of the undesired group is generally uniform -- the dispreferred group tends to be dispreferred not only in terms of aesthetics, but in other significant contexts -- the impact of aesthetic undesirability is compounded by cultural ostracism in other realms.

III. Constitutional Concerns

In the case of personal ads, it is difficult to quantify the value of excluding a certain group and the costs of its exclusion; consequently, the outcome of a utilitarian analysis is uncertain. For the purposes of the argument, however, this Part assumes that the value to the advertiser of racial signifiers does not outweigh the harms that such signifiers cause and that legal regulation of the conduct is therefore desirable. Once state regulation is in place, the force of the Constitution is brought to bear, protecting the freedom of association and expression; ⁽⁶⁵⁾ the latter protection favors advertisers' continued ability to use racial signifiers.

A.  Freedom of Intimate Association

Traditionally, the Constitution has been interpreted to protect "highly personal" relationships from state intrusion. ⁽⁶⁶⁾ This protection has been described as a right of "intimate association" -- a right to select one's associates in the most intimate contexts, specifically those akin to marriage and family. ⁽⁶⁷⁾ The protection of intimate association stems from the preservation of individual liberty guaranteed in the Bill of Rights: as the Supreme Court explained in Roberts v. United States Jaycees, ⁽⁶⁸⁾ "the constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships . . . therefore safeguards the ability independently to define one's identity that is central to any concept of liberty." ⁽⁶⁹⁾

At its most basic, the value of this right lies in the individual's ability to choose her companions. Choice is intrinsic to any conception of true liberty, for "[i]t is the choice to form and maintain an intimate association that permits full realization of the associational values we cherish most." ⁽⁷⁰⁾ To prohibit individuals from specifying the race of their desired partner in personal ads interferes with the right of intimate association because it constrains a characteristic that is central to the right: an individual's freedom of choice.

This freedom of choice, however, is not absolute. For example, in the private club context, the right to choose one's associates has had to conform, to some extent, to modern notions of equality and anti-discrimination. ⁽⁷¹⁾ Furthermore, it is within the state's powers to burden the right to form intimate associations. ⁽⁷²⁾ In the case of personal ads, a prohibition of racial signifiers would hinder the right of intimate association, but would still allow one to select the race of one's partner.

B.  Freedom of Expression

The Supreme Court has explicitly recognized the right of individuals to associate for purposes of self-expression. ⁽⁷³⁾ However, despite Justice Douglas's assertion in Lathrop v. Donohue ⁽⁷⁴⁾ that "[j] oining is one method of expression," ⁽⁷⁵⁾ not every association is expressive. ⁽⁷⁶⁾ Instead, "[a]t a minimum . . . associations must further expressive activity in the sense of 'advanc[ing] . . . beliefs and ideas."' ⁽⁷⁷⁾ Under this definition, an individual's choice of whom to date or marry, although it undoubtedly expresses something about the individual, is nonetheless unlikely to be protected by rights of expressive association; in most instances, one does not enter such associations for the purpose of advancing shared ideas, but rather for companionship. Consequently, to restrict the use of racial signifiers would not violate the advertiser's right of expressive association.

Restricting the use of racial signifiers does, however, raise profound First Amendment concerns because a state-imposed restriction on advertising infringes upon the advertiser's freedom of speech. Regulation in this area is problematic for two reasons. First, racial signifiers do not fall within the established exceptions to protected speech. ⁽⁷⁸⁾ Second, they are not direct racial insults, which, it has been argued, should not receive First Amendment protection. ⁽⁷⁹⁾ Consequently, any restriction on racial signifiers would have to pass strict scrutiny, ⁽⁸⁰⁾ a standard that requires a compelling state justification before permitting regulation. Although the use of such signifiers imposes actual harms, these harms are unlikely to be perceived as sufficiently compelling to allow state regulation.

IV. Conclusion

There are undoubtedly more immediate racial problems to be confronted than the use of racial signifiers in personal advertisements; racial stratification and hostility escalate constantly, and are accompanied by increases in minority poverty and urban violence. A program for the resolution of racial strife is not the goal of this Note, however. Instead, this Note hopes only to challenge its readers to question the innocuousness of the race-based distinctions that are made and permitted to be made on a daily basis and without a second thought.

In the case of personal ads, there are real harms imposed by often disregarded race-based signifiers: such signifiers transmit messages that are both stigmatic and separatist. Despite these harms, it is inconceivable that courts will recognize and redress injuries caused by racial signifiers in personal ads; it is equally unlikely that legislatures (or newspapers themselves) will regulate this practice. Moreover, it is unclear whether such regulation, which intrudes upon deeply rooted notions of privacy and individual freedom, would be desirable. There are inherent dangers in inviting courts and legislatures into the sphere of intimate associations. ⁽⁸¹⁾

Because official action is unlikely, and perhaps undesirable, responsibility for the regulation of this conduct falls to individuals. One can say that this conduct is private, that it is meaningless, that because there is no "public good" at stake, it should not be of concern. But private discrimination of the sort these signifiers convey is both the first and the final frontier of racial difference; until individuals can be dissuaded from accepting as normal the choice of intimates by race, race will always divide. The force of public opinion may provide the only feasible means for change.

Notes

1. JAMES W. JOHNSON, ALONG THIS WAY 170 (1933).

2. This advertisement was published in The Courier, a Maryland weekly newspaper, on January 8, 1970. See United States v. Hunter, 459 F.2d 205, 209 & n.1 (4th Cir. 1972).

3. Studies demonstrate that, although levels of covert racism remain high, overt discrimination "has lost all social acceptance." David B. Oppenheimer, Negligent Discrimination, 141 U. PA. L. REV. 899, 902-15 (1993); see also Thomas F. Pettigrew, New Patterns of Racism: The Different Worlds of 1984 and 1964, 37 RUTGERS L. REV. 673, 688-89 (1985) (arguing that, although individuals comply publicly with the new norms of equality and racial tolerance, there has been little internalization of these norms).

4. Moreover, to advertise racial preferences is illegal in the context of housing. See 42 U.S.C. § 3604(c) (1988) (forbidding any person "[t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race . . . or an intention to make any such preference, limitation, or discrimination"). Discriminatory advertising of employment opportunities is similarly prohibited. See 42 U.S.C. 2000e-3(b) (1988).

5. Personal advertisements of this sort, short columns in which advertisers communicate their desires for lovers and mates, can be found in the classified sections of myriad newspapers and magazines. It is common for advertisers in these ads to specify their own race and the race of desired respondents. See infra note 7. Typical ads read: "SWF 33, Professional Musician seeks SWM . . . . " BOSTON MAG., Nov. 1993, at 143; "Harvard JD/MBA, banker, single white male, 30, seeks white or Asian female . . . . " NEW YORK MAG., Nov. 8, 1993, at 132; "Attractive, voluptuous SBF, 30s seeking SWM . . . . " VILLAGE VOICE, Nov. 2, 1993, at 152. In addition to race, advertisers often articulate desired sexual orientation, national origin, or religion. Although such advertisements raise many interesting questions (as does the very existence of personal ads), the scope of this Note is limited to the significance of the expression of racial preferences in personal ads.

6. According to a 1987 survey, 27% of whites polled favored legislation to prohibit marriage between blacks and whites. See Oppenheimer, supra note 3, at 907 (citing HOWARD SCHUMAN, CHARLOTTE STEEH & LAWRENCE BOBO, RACIAL ATTITUDES IN AMERICA xii (1988)).

7. A casual survey of various newspapers and magazines, conducted between November 28, 1993 and December 12, 1993, reveals that half of all advertisers in the personals explicitly specified the race of desired respondents, using words such as white, black or Asian. Publications surveyed include The Atlanta Journal, Baltimore Magazine, Boston Magazine, The Buffalo News, Chicago Magazine, The Denver Post, The Detroit News and Free Press, The Greensboro News and Record, The Kansas City Star, Los Angeles Magazine, The Milwaukee Journal, The New York Daily News, Pittsburgh Magazine, The Seattle Post, The Tallahassee Democrat, and Washingtonian Magazine. Overall, the majority of these designations were used by advertisers who sought same-race respondents.

8. In American culture, race consciousness can rarely be presumed to lack significance: "[W]hat is so deeply troubling about this nation's race- consciousness is the degree to which it currently embodies race hatred, prejudice, and 'old-fashioned' discrimination." T. Alexander Aleinikoff, The Constitution in Context: The Continuing Significance of Racism, 63 U. COLO. L. REV. 325, 331 (1992).

9. The term "racial signifier" as used in this Note embraces any specification of race and applies whether the advertiser seeks someone of her own race or someone of a different race.

10. Currently there is no legislation that regulates the use of racial signifiers in personal advertisements. Although individual publications retain the right to refuse to publish ads submitted, there is no uniform policy against the publication of ads using racial signifiers.

11. The injury of stigma was first recognized in Strauder v. West Virginia, 100 U.S. 303 (1880). In invalidating a West Virginia statute that prohibited blacks from serving on juries, Justice Strong reasoned that the Fourteenth Amendment protects blacks "from legal discriminations, implying inferiority in civil society," id. at 308, and concluded that the statutory prohibition was "practically a brand upon them[,] . . . an assertion of their inferiority," id. Similarly, concerns about stigma underlay Brown v. Board of Education, 347 U.S. 483 (1954), in which the Court observed that the segregation of black public school pupils "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone," id. at 494.

12. Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 351 (1987) (footnote omitted). In addition, racial stigmatization can impair the victim's cross- racial and intra-racial relationships. See Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 HARV. C.R.-C.L. L. REV. 133, 137 (1982).

13. See William P. Marshall, Discrimination and the Right of Association, 81 NW. U. L. REV. 68, 94 (1986) ("Discrimination need not occur solely at state behest to further debilitating social stereotypes.").

14. See, e.g., Larry G. Simon, Racially Prejudiced Governmental Actions: A Motivation Theory of the Constitutional Ban Against Racial Discrimination, 15 SAN DIEGO L. REV. 1041, 1052-53 (1978).

15. 163 U.S. 537 (1896).

16. See id. at 551 ("If the two races are to meet on terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits and a voluntary consent of individuals.").

17. Id.

18. Indeed, Justice Harlan admitted as much in his dissent in Plessy: "The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not that it will continue to be for all time . . . . " Id. at 559 (Harlan, J., dissenting).

19. Lawrence, supra note 12, at 351. Lawrence argues that his "cultural meaning" test should replace the current discriminatory-intent standard as the method for determining the constitutionality of facially neutral laws. Id. at 324. In contrast, this Note applies the cultural meaning test to discern stigmatizing messages in conduct that is explicitly race-based.

20. Id.

21. The roots of state anti-miscegenation laws can be traced to laws enacted by the American colonies before the Revolutionary War. See DAVID H. FOWLER, NORTHERN ATTITUDES TOWARDS INTERRACIAL MARRIAGE 7-8 (1987). In all, six out of the 13 British colonies restricted intermarriage. See id. at 8. Ultimately, 41 states had anti-miscegenation laws at some point in their history, see id. at 7, and six Southern states enshrined these laws in their constitutions, see id. at xii. As late as 1967, when the Supreme Court held Virginia's anti-miscegenation law unconstitutional, see Loving v. Virginia, 388 U.S. 1, 2 (1967), 16 states prohibited intermarriage. See FOWLER, supra, at xi.

22. For a comprehensive discussion of the connection between anti- miscegenation laws and systems of racial subordination, see WINTHROP D. JORDAN, WHITE OVER BLACK 136-54 (1977). Jordan argues that "[s]exually as well as in every other way, Negroes were utterly subordinated. White men extended their dominion over their Negroes to the bed . . . . " Id. at 141; see also ROBERT J. SICKELS, RACE, MARRIAGE, AND THE LAW 15 ("Of all the attributes of an inferior group, the most feared is its power to pollute. . . . [T]he ultimate pollution and ultimate challenge to the dominance of the superior racial caste is intermarriage.").

23. Undoubtedly, it can be argued that this model applies only to whites who seek other whites, because "[e]xclusion by an oppressed group carries a different non-stigmatic message." Pamela J. Smith, Comment, We Are Not Sisters: African-American Women and the Freedom to Associate and Disassociate, 66 TULANE L. REV. 1467, 1507-09 (1992); see also Deborah L. Rhode, Association and Assimilation, 81 NW. U. L. REV. 106, 122 (1986) (linking the absence of stigmatic effect when subordinate groups exclude members of empowered groups to "this nation's historic traditions and cultural understandings"). Indeed, it is possible that many who read "black man seeks black woman" find this message an empowering one of cultural solidarity, rather than a stigmatizing reflection of absorbed notions of anti-miscegenation. See DERRICK BELL, RACE, RACISM AND AMERICAN LAW 83-84 (3d ed. 1992).

24. See KATHY RUSSELL, MIDGE WILSON & RONALD HALL, THE COLOR COMPLEX 41 (1992) (describing America as "a society whose ideal beauty -- blond, pale skinned, with blue or green eyes -- embodies everything the average Black female lacks"); see also PAUL R. SPICKARD, MIXED BLOOD 258-59, 264-65 (1989) (contrasting the dominant culture's images of white women as "charming, pure and virginal," against views of black women as "animalistic and unattractive"); Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 DUKE L.J. 365, 372 n.15 ("[T]he aesthetic order of a society sets the norms of beauty and acceptability of the dominant group as the standard . . . . "). Traditional perceptions of non-white as undesirable are not limited to men's images of women. Black men may also be perceived as unattractive. See, e.g., CALVIN HERNTON, COMING TOGETHER 13 (1971) ("Long before anybody ever heard of King Kong, the black man was made into a monstrosity. Black men were ugly, oversexed mules against whom the virtues of white womanhood had constantly to be protected.").

25. See HERNTON, supra note 24, at 20 ("[T]he black man internalized much of the white world's ideology regarding the black woman, or at least that portion of it which deemed black women ugly and therefore unlovable."). According to this argument, stigma also results when men -- black or white -- advertise for "light" women, for example, "Harvard MBA corporate gentleman [seeks] light SBF under 30 . . . . " WASHINGTONIAN MAG., Nov. 1993, at 196.

26. BOSTON PHOENIX, Nov. 12, 1993, Adult Services at 3.

27. See JORDAN, supra note 22, at 150-51; SPICKARD, supra note 24, at 236-37, 257 (describing the white male fixation "on the Black woman as harlot"). There is thus an inherent tension within white visions of black women: "[o]ne theme described them as attractive, easily exploitable sex objects; the other, as bordering on the repulsive." Id. at 256.

28. Personal ads in which white females seek black males may evoke equally stigmatizing notions of black men as "particularly virile, promiscuous, and lusty." JORDAN, supra note 22, at 151.

29. The meaning of "social integration" can best be understood when the term is contrasted with "desegregation." "Desegregation is eliminative and negative, for it simply removes [the] legal and social prohibitions [of segregation]. . . . Integration is the positive acceptance of desegregation and the welcomed participation of Negroes into the total range of human activities. Integration is genuine intergroup, interpersonal doing." Martin L. King, Jr., Church Conference Address, Nashville, Tennessee (Dec. 27, 1962), in A TESTAMENT OF HOPE 118 (James M. Washington ed., 1986).

30. This premise reflects what is in essence a normative judgment; it cannot be proved in the abstract that integration is better than, for example, separatism. However, integration has long represented a social ideal. See id. ("Desegregation . . . is only a short-range goal. Integration is the ultimate goal of our national community."). Among its values, "[i]ntegration is indispensable to shattering racial stereotypes." THEODORE CROSS, THE BLACK POWER IMPERATIVE 609-10 (1987); see also TAMOTSU SHIBUTANI & KIAN KWAN, ETHNIC STRATIFICATION 589 (1965) (arguing that increased interethnic interaction will lead "individuals [to] recognize their resemblances"). In addition to promoting cross-racial understanding, integration provides "access to a rich life experience." Neil Gotanda, A Critique of "Our Constitution Is Color-Blind," 44 STAN. L. REV. 1, 58 (1991).

Alternatively, one might not view integration as a good in itself, but rather as a means to achieve a different social good: economic and social equality. Douglas Massey and Nancy Denton take this approach to integration in their exhaustive analysis of American housing patterns. The authors argue for national efforts to achieve residential desegregation; without it, they conclude, "black chances for social and economic success are drastically reduced." DOUGLAS MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 2 (1993); see also CROSS, supra, 607-09 (arguing that residential integration insures blacks a physical presence "at or near the place of residence . . . of people who manage and call the shots in the political and economic systems" and is consequently "an indispensable requirement for achieving economic equality").

Not all commentators embrace the value of integration, however. For a powerful critique of the integrationist ideal, see STOKELY CARMICHAEL & CHARLES V. HAMILTON, BLACK POWER: THE POLITICS OF LIBERATION IN AMERICA 53-56 (1967).

31. An informal survey demonstrates that same-race advertising accounts for the majority of all ads that use racial signifiers. See supra note 7.

32. This argument is premised on the belief that advertising does not merely reflect, but also shapes reality by providing a vision of the way society ought to be. See, e.g., ALICE E. COURTNEY & THOMAS W. WHIPPLE, SEX STEREOTYPING IN ADVERTISING 58 (1983) ("[I]t is indisputable that advertising is at least one contributing influence affecting the way children and adults view their roles in society. . . . There is also mounting evidence . . . that more responsible advertising could play a positive and beneficial role [in ameliorating social ills]."); Jane E. Smith, V. Ann Waldorf & David L. Trembath, "Single White Male Looking for Thin, Very Attractive . . . ," 23 SEX ROLES 675, 675, 680-83 (1990) (exploring the relationship between personal ads and "[s]ociocultural pressures on women to be thin"); see also Housing Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644, 658 (6th Cir. 1991) ("[T]he exclusive use of white models [in housing advertisements] sends the subtle but distinct message of racial exclusion. 'Blacks need not apply.' 'Blacks are not welcome."') (Keith, J., dissenting).

33. Indeed, theorist Fernando Henriques has argued that "if the world is to solve the problem of inter-racial conflict the only sure foundation is inter-racial marriage." FERNANDO HENRIQUES, CHILDREN OF CONFLICT xiii (1975). Cultural pluralists would dispute this conclusion and would argue that ethnic and racial identity can be elevated to great significance even within an integrated society. See HORACE KALLEN, CULTURE AND DEMOCRACY IN THE UNITED STATES 124 (1924); WHITNEY M. YOUNG, JR., BEYOND RACISM 151-52 (1969).

34. Separatist beliefs often reappear in the context of housing. Studies demonstrate that residential segregation is not the result of socioeconomic differences between blacks and whites, as is frequently argued, but instead stems largely from white desire not to live with blacks. See MASSEY & DENTON, supra note 30, at 11. The removal of racial signifiers from personal ads obviously will not eradicate segregated housing; however, it may have some influence on levels of societal segregation because it eliminates one message that promotes racial separation. Indeed, if residential segregation is the result of social attitudes rather than economics, then efforts to eliminate racial stereotypes in public discourse may be the most effective step toward residential integration.

35. White Americans average twice the income of blacks and are more likely than blacks to live in a family with an annual income in excess of $50,000. See Robert L. Hayman, Jr. & Nancy Levit, The Constitutional Ghetto, 1993 WIS. L. REV. 627, 678. In addition, the median incomes of black families have consistently declined in relation to that of white families -- 61% in 1970, 58% in 1974, and 56% in 1981. See Pettigrew, supra note 3, at 680.

36. See CROSS, supra note 30, at 462 ("If Americans were ever able to overcome the superstitions of race, widespread intermarriage between the races would undoubtedly produce the final and complete economic solution to black- white economic differences.").

37. The Supreme Court has recognized these benefits in the context of private clubs. See Roberts v. United States Jaycees, 468 U.S. 609, 626, 628- 29 (1984) (concluding that the "'leadership skills"' and "'business contacts"' obtained by members of the Jaycees constitute privileges, and that the assurance of equal access to such privileges is a compelling state interest). Certainly such benefits inhere in intimate relations. See CROSS, supra note 30, at 607-08 ("Only when full racial integration occurs . . . will success factors such as luck, connections, friendships, loyalties, nepotism, and access to information help blacks and whites on an equal basis.").

38. CROSS, supra note 30, at 607-08.

39. See Larry Alexander, What Makes Wrongful Discrimination Wrong: Biases, Preferences, Stereotypes and Proxies, 141 U. PA. L. REV. 149, 159 (1992). Alexander argues that

[w]hen a person is judged incorrectly to be of lesser moral worth and is treated accordingly, that treatment is morally wrong regardless of the gravity of its effects. It represents a failure to show the moral respect due the recipient, a failure which is by itself sufficient to be judged immoral.

Id.

40. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

41. Minnick v. California Dep't of Corrections, 452 U.S. 105, 128 (1981) (Stewart, J., dissenting).

42. In certain circumstances, most notably housing and employment, an individual's right to indulge his discriminatory tastes, although permitted by the Constitution, is nonetheless statutorily prohibited. See, e.g., 42 U.S.C. §§ 2000e-2(a)-(d), 3604 (1988).

43. Alexander, supra note 39, at 163; see also JOSEPH RAZ, THE MORALITY OF FREEDOM 410-12 (1986) (arguing that, although individuals require a choice of options in order to realize their autonomy, "[p]roviding, preserving or protecting bad options does not enable one to enjoy valuable autonomy").

44. See Alexander, supra note 39, at 201. Indeed, the federal anti- discrimination laws recognize a protected "moral space," and limit their prohibitions to contexts in which the moral space of discriminators is least likely to be implicated. Discrimination by employers with few employees is permitted, see 42 U.S.C. § 2000e(b) (1988), as is discrimination by small landlords, see id. § 3603(b)(1)-(2). However, although it is permissible under federal law for small landlords to discriminate, discriminatory advertising by these individuals is nonetheless prohibited. See id. §§ 3603(b), 3604(c).

45. Minorities may find this freedom to order their personal interactions less desirable than may members of the majority race. See Richard Delgado, Critical Legal Studies and the Realities of Race -- Does the Fundamental Contradiction Have a Corollary?, 23 HARV. C.R.-C.L. L. REV. 407, 412 (1988). Delgado argues that minorities "will want the safety that comes from structure, rights and rules. [Whites] will want free-flowing, uninhibited interpersonal relationships with all the barriers down." Id. at 412.

46. See Alexander, supra note 39, at 163. Alexander suggests that prohibiting an individual from choosing his or her spouse on the basis of racial bias could violate that individual's moral rights.

47. See Morton J. Horwitz, Rights, 23 HARV. C.R.-C.L. L. REV. 393, 404 (1988) ("A right is just a social interest to which we think it desirable to accord a privileged position in the law.").

48. Id., at 403. Instead, Horwitz argues, "[t]he most promising way to ensure that rights may be used on behalf of the socially weak . . . is to ground rights theory in a substantive conception of the good society." Id. at 404.

49. Stephen L. Carter, When Victims Happen to be Black, 97 YALE L.J. 420, 436 (1988).

50. See, e.g., NATHAN GLAZER & DANIEL P. MOYNIHAN, BEYOND THE MELTING POT 53 (1963) ("[T]he Negro is only an American, and nothing else."). But see James Turner, Black Nationalism: The Inevitable Response, BLACK WORLD, Jan. 1971, at 4, 7-8 ("This common history which the Black people of America share is manifested in a concrete national culture with a peculiar 'spiritual complexion,' or psychological temperament." (quoting C. Munford, Black National Revolution in America, Address at Utah State University (May 1970))).

51. Theorists argue that proxies based on inaccurate generalizations will impose a cost on their user, who will thus choose to eliminate them. See David A. Strauss, The Law and Economics of Racial Discrimination in Employment: The Case for Numerical Standards, 79 GEO. L.J. 1619, 1640 (1991). Invidious biases, however, may underlie irrational proxies; consequently, the irrationality of the proxy will not necessarily lead to its abandonment. See Alexander, supra note 39, at 170; see also Carter, supra note 49, at 431 ("[V] irtually anyone who makes a judgment about another person that rests on race will believe the judgment to be a rational one.").

52. Barbara D. Underwood, Law and the Crystal Ball: Predicting Behavior with Statistical Inference and Individualized Judgment, 88 YALE L.J. 1408, 1414 (1979).

53. "Proxy discrimination based on accurate predictions of the choices of the dispreferred tends to perpetuate the social realities that make the predictions accurate." Alexander, supra note 39, at 170.

54. See Strauss, supra note 51, at 1622-23.

55. See SICKELS, supra note 22, at 29-30 ("[N]early all interracial couples report that it is hard to endure the inescapable staring of the hostile and the merely curious."); Oppenheimer, supra note 3, at 907.

56. Orleans Parish Sch. Bd. v. Bush, 242 F.2d 156, 166 (5th Cir. 1957). Traditionally, American courts have not allowed state actors to justify discriminatory treatment of individuals by relying on social attitudes. See, e.g., Palmore v. Sidoti, 466 U.S. 429, 433-34 (1984) (concluding that social stigmatization was an insufficient ground to remove a child from the custody of her white mother who had married a black man); Cooper v. Aaron, 358 U.S. 1, 16 (1958) ("[L]aw and order are not here to be preserved by depriving the Negro children of their constitutional rights."); Buchanan v. Warley, 245 U.S. 60, 81 (1917) (rejecting the argument that a law that forbade blacks to occupy homes on predominantly white blocks would "promote the public peace by preventing race conflicts"). The Court has not, however, denied the validity of this justification as it relates to private actors.

57. See Alexander, supra note 39, at 176 ("[F]ailure to count the reactions . . . will frequently impose costs on parties other than the immoral reactors.").

58. See Alan Wertheimer, Jobs, Qualifications, and Preferences, 94 ETHICS 99, 107-08 (1983) (suggesting that the justness of considering others' reactions may follow from the morality of the reaction itself).

59. See Alexander, supra note 39, at 166 ("Although aversions and attractions based on physical attractiveness are common, they usually neither derive from nor reinforce biases, ideals, or stereotypes.").

60. Id. at 165.

61. See supra p. 882.

62. See Caldwell, supra note 24, at 392 ("The aesthetic standards of the white society . . . establish a boundary between black and white, good and bad, pure and evil, true and false, justifying not only the aesthetic or ideal of racial superiority, but also the social, economic, and political structures of domination that result from this ideal.").

63. Id. at 393.

64. However, the aesthetic preferences of white males for minority females are equally suspect, as they may stem from racist beliefs about minority sexuality. See sources cited supra note 27.

65. These protections create, in some sense, a "right" to discriminate. See Marshall, supra note 13, at 74-91.

66. See Roberts v. United States Jaycees, 468 U.S. 609, 618 (1983) ( "The Court has long recognized that . . . it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.").

67. See Kenneth L. Karst, The Freedom of Intimate Association, 89 YALE L.J. 624, 629 (1980); see also Roberts, 468 U.S. at 619-20 ("The personal affiliations . . . that might be entitled to this sort of constitutional protection, are those that attend the creation and sustenance of a family -- marriage, childbirth, the raising and education of children, and cohabitation with one's relatives.") (citations omitted).

68. 468 U.S. 609 (1983).

69. Id. at 619.

70. Karst, supra note 67, at 637; see also Note, State Power and Discrimination by Private Clubs: First Amendment Protection for Nonexpressive Associations, 104 HARV. L. REV. 1835, 1839 (1991) ("A right to exclude others on any basis whatsoever -- a right to discriminate -- is essential if a sphere of robust private association is to be preserved and the values of associational freedom realized.").

71. See Note, supra note 70, at 1838-42. Although one can argue that private clubs are entitled to less leeway in their right to discriminate because they do not embody all the elements of a truly "intimate" association, there are extremely intimate associations which the government has been permitted to regulate. Foremost among these examples is the state's power to criminalize consensual sodomy, articulated by the Supreme Court in Bowers v. Hardwick, 478 U.S. 186, 189-90 (1986); see also Belle Terre v. Boraas, 416 U.S. 1, 8-10 (1974) (upholding local zoning ordinance restricting land use to "one-family