May 16, 2005
same-sex marriage in historical context
I refuse to join in the beating up that Eugene Volokh and Jason Kuznicki have given the federal court decision on the Nebraska constitutional initiative against same-sex marriage. It generally follows, as controlling precedent requires, the logic of the Supreme Court in ROMER v. EVANS, a decision Eugene Volokh dislikes. Nor does it require the state to legalize same-sex marriages or permit localities to do so, any more than ROMER required Colorado to pass a statewide non-discrimination law. Nor am I concerned that it will lead to a revival of calls for a Federal constitutional amendment, at least not until the next election season. (Why is it that controversial advances such as Vermont’s civil unions law and Massachusetts marriage law both took effect in Presidential campaign seasons?). Even at that, Nebraska’s law was so broad, in eliminating civil unions and domestic partnership arrangements as well as marriage, that its elimination probably might not make a good casus belli for the Republicans, especially since George Bush has been careful to remain ambiguous on whether he supports civil unions.
What is interesting is that Jason Kuznicki has called, apparently facetiously, for a return to a pre-LOVING v. VIRGINIA situation, where states are free to rule against interracial marriages as well. This prompts me to ponder how the current debates over same-sex marriage reflect the efforts of the state throughout American History to use marriage laws to draw racial lines and define national citizenship. The most visible way in which state and federal authorities used marriage laws to exclude people of African and Asian ancestry, of course, is through laws forbidding racial intermarriage between whites and nonwhites. (It is worth remembering that these laws did not only exist in the South, and they were not only directed against Black equality. In his writings during the 1920s, Franklin Roosevelt justified the exclusion of Japanese immigrants and the discriminatory laws that prevented aliens from naturalizing or owning property on the grounds that these laws protected “racial purity” against intermarriage).
Miscegenation laws did not, in any case, represent by any means the sum total of such methods. Let me briefly discuss several others:
First, the Southern states refused to recognize slave marriages during the antebellum period. This had moral implications, in denying the humanity of enslaved African Americans and fixing their status as the property of the slaveowner, including the Black women victimized by the rape and sexual exploitation of white masters. Even more, the absence of legal bonds between slaves meant that the master’s property interest was unlimited--partners could be sold off and couples divided at his whim and profit. The division of families was a major subject of abolitionist propaganda. In Harriet Beecher Stowe’s UNCLE TOM’S CABIN, the most influential antislavery novel ever published, the slave Eliza risks her life to escape to Canada in order to be reunited with her lover. In fact, many of the slaves who escaped the plantations through the Underground Railroad, were attempting family reunification, and one of the freedoms Canada offered the refugees was equal marriage rights. After the abolition of slavery, thousands of Black couples immediately solemnized their marriages, while countless others wandered the South and elsewhere, trying to find the families from whom they had been cut off.
Another example of the use of marriage laws to exclude nonwhites is Federal policies towards Chinese immigrants. After large-scale immigration from China began in the 1840s, whites in California and the Pacific states objected to the presence of the Asians as degenerated and a threat to white society, both by their alleged willingness to work for lower wages and through the menace of racial mixing. The vast majority of Chinese immigrants were single male laborers. Given this skewed sex ratio, morality leagues and anti-Asian committees argued that the Chinese were barbaric and opposed normal family life. Yet, when Chinese men thought of finding wives, and sex ratios became more balanced, these same committees charged that those Chinese women who immigrated were prostitutes. In 1875, Congress passed the Page Act, which banned prostitutes from entering the United States, and obliged Asian immigrant women—especially unmarried women-- to prove that they were not prostitutes, a difficult and degrading enough procedure to end most Chinese female immigration.
Seven years later, in 1882, Congress banned immigration by all Chinese laborers. Henceforth only small numbers of Chinese from protected categories—teachers, students, ministers and merchants—could legally enter the US. Those immigrants who had entered before exclusion was enacted were permitted to remain if they secured an identification card, were forbidden to bring their wives. Since according to federal law no Asian could become a naturalized US citizen, they were fixed as eternal foreigners, without equal rights. These acts froze Chinese communities as all-male, leading to a homosocial world of what Historian Nayan Shah has called queer domesticity, in which men formed their closest living and working relationships with other men. It also impeded the birth of American citizens of Chinese ancestry, who could enjoy full citizenship rights under the Constitution. Other Asian immigrants (other than Japanese), likewise banned from naturalization, remained in isolated bachelor communities.
Yet even American citizens of Asian ancestry faced legal obstacles to reproduction, in the form of the Cable Act. Out of fear that foreign men would control American women whose creatures they were, legally speaking, in 1906 Congress enacted a law that stripped American citizen women of their citizenship if they married male aliens. It was assumed that they henceforth were citizens by marriage of their husband’s countries. Following a campaign led by congresswoman Ruth Bryan Owen, daughter of statesman William Jennings Bryan, who had married an Englishmen lost her citizenship and been forced to go through naturalization proceedings to regain citizenship, the law was amended in 1921 to strip women of their American citizenship only if they married male aliens “ineligible to citizenship.” The law remained on the books until the 1930s, and limited community size and citizen political power by discouraging marriage between native-born Americans of Asian ancestry and Asian aliens. Yet, in spite of women being considered attachments of their husbands, Asian women, even those who married White men, remained excluded from entering the United States, let alone from citizenship.
Ironically, even after immigration laws ceased to exclude minorities, marriage became the prime factor in the ways the state viewed immigration, and in how the federal government drew national boundaries between acceptable and unacceptable immigrants. In 1952, Congress passed the McCarran-Walter Act, which granted immigration and naturalization rights to Asians, although it was not until 1965 that the discriminatory system of national quotas that favored Western Europeans was finally abolished. Both these laws gave priority in immigration to “family reunification, “ meaning those wishing to bring husbands or wives (or parents or children) had first shot at immigration visa slots. The law thus created a hierarchy of family relationships based on a heterosexual nuclear couple, rather than the extended families or informal kin units that have made up traditional family units. Ironically, the immigration Laws passed in part because of the popularity of these Family Reunification provisions. Though officially the laws opened up immigration on an equal basis to the entire world, they were in fact designed to maintain existing racial patterns and reconfirm white hegemony, since Euro-Americans were the largest fraction of US residents, and it was assumed that they would have most of the families that would benefit from such a law. Thanks to chain migration by Latin American and Asian families, however, non-European immigrants became the largest fraction coming in through such provisions.
What is interesting is that Jason Kuznicki has called, apparently facetiously, for a return to a pre-LOVING v. VIRGINIA situation, where states are free to rule against interracial marriages as well. This prompts me to ponder how the current debates over same-sex marriage reflect the efforts of the state throughout American History to use marriage laws to draw racial lines and define national citizenship. The most visible way in which state and federal authorities used marriage laws to exclude people of African and Asian ancestry, of course, is through laws forbidding racial intermarriage between whites and nonwhites. (It is worth remembering that these laws did not only exist in the South, and they were not only directed against Black equality. In his writings during the 1920s, Franklin Roosevelt justified the exclusion of Japanese immigrants and the discriminatory laws that prevented aliens from naturalizing or owning property on the grounds that these laws protected “racial purity” against intermarriage).
Miscegenation laws did not, in any case, represent by any means the sum total of such methods. Let me briefly discuss several others:
First, the Southern states refused to recognize slave marriages during the antebellum period. This had moral implications, in denying the humanity of enslaved African Americans and fixing their status as the property of the slaveowner, including the Black women victimized by the rape and sexual exploitation of white masters. Even more, the absence of legal bonds between slaves meant that the master’s property interest was unlimited--partners could be sold off and couples divided at his whim and profit. The division of families was a major subject of abolitionist propaganda. In Harriet Beecher Stowe’s UNCLE TOM’S CABIN, the most influential antislavery novel ever published, the slave Eliza risks her life to escape to Canada in order to be reunited with her lover. In fact, many of the slaves who escaped the plantations through the Underground Railroad, were attempting family reunification, and one of the freedoms Canada offered the refugees was equal marriage rights. After the abolition of slavery, thousands of Black couples immediately solemnized their marriages, while countless others wandered the South and elsewhere, trying to find the families from whom they had been cut off.
Another example of the use of marriage laws to exclude nonwhites is Federal policies towards Chinese immigrants. After large-scale immigration from China began in the 1840s, whites in California and the Pacific states objected to the presence of the Asians as degenerated and a threat to white society, both by their alleged willingness to work for lower wages and through the menace of racial mixing. The vast majority of Chinese immigrants were single male laborers. Given this skewed sex ratio, morality leagues and anti-Asian committees argued that the Chinese were barbaric and opposed normal family life. Yet, when Chinese men thought of finding wives, and sex ratios became more balanced, these same committees charged that those Chinese women who immigrated were prostitutes. In 1875, Congress passed the Page Act, which banned prostitutes from entering the United States, and obliged Asian immigrant women—especially unmarried women-- to prove that they were not prostitutes, a difficult and degrading enough procedure to end most Chinese female immigration.
Seven years later, in 1882, Congress banned immigration by all Chinese laborers. Henceforth only small numbers of Chinese from protected categories—teachers, students, ministers and merchants—could legally enter the US. Those immigrants who had entered before exclusion was enacted were permitted to remain if they secured an identification card, were forbidden to bring their wives. Since according to federal law no Asian could become a naturalized US citizen, they were fixed as eternal foreigners, without equal rights. These acts froze Chinese communities as all-male, leading to a homosocial world of what Historian Nayan Shah has called queer domesticity, in which men formed their closest living and working relationships with other men. It also impeded the birth of American citizens of Chinese ancestry, who could enjoy full citizenship rights under the Constitution. Other Asian immigrants (other than Japanese), likewise banned from naturalization, remained in isolated bachelor communities.
Yet even American citizens of Asian ancestry faced legal obstacles to reproduction, in the form of the Cable Act. Out of fear that foreign men would control American women whose creatures they were, legally speaking, in 1906 Congress enacted a law that stripped American citizen women of their citizenship if they married male aliens. It was assumed that they henceforth were citizens by marriage of their husband’s countries. Following a campaign led by congresswoman Ruth Bryan Owen, daughter of statesman William Jennings Bryan, who had married an Englishmen lost her citizenship and been forced to go through naturalization proceedings to regain citizenship, the law was amended in 1921 to strip women of their American citizenship only if they married male aliens “ineligible to citizenship.” The law remained on the books until the 1930s, and limited community size and citizen political power by discouraging marriage between native-born Americans of Asian ancestry and Asian aliens. Yet, in spite of women being considered attachments of their husbands, Asian women, even those who married White men, remained excluded from entering the United States, let alone from citizenship.
Ironically, even after immigration laws ceased to exclude minorities, marriage became the prime factor in the ways the state viewed immigration, and in how the federal government drew national boundaries between acceptable and unacceptable immigrants. In 1952, Congress passed the McCarran-Walter Act, which granted immigration and naturalization rights to Asians, although it was not until 1965 that the discriminatory system of national quotas that favored Western Europeans was finally abolished. Both these laws gave priority in immigration to “family reunification, “ meaning those wishing to bring husbands or wives (or parents or children) had first shot at immigration visa slots. The law thus created a hierarchy of family relationships based on a heterosexual nuclear couple, rather than the extended families or informal kin units that have made up traditional family units. Ironically, the immigration Laws passed in part because of the popularity of these Family Reunification provisions. Though officially the laws opened up immigration on an equal basis to the entire world, they were in fact designed to maintain existing racial patterns and reconfirm white hegemony, since Euro-Americans were the largest fraction of US residents, and it was assumed that they would have most of the families that would benefit from such a law. Thanks to chain migration by Latin American and Asian families, however, non-European immigrants became the largest fraction coming in through such provisions.