1	The Intersection of Race and Gender Asian Americans and the Law Dr. Steiner
2	"“Pacific Railroad Complete,”..." “Pacific Railroad Complete,” Harper’s Weekly (June 12, 1869)
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16	Chy Lung v. Freeman (1875) Issue: Whether California statute regulating immigration is constitutional “It is a most extraordinary statute.” What’s its purpose?
17	Chy Lung v. Freeman (1875) Commissioner of Immigration is “to satisfy himself whether or not any passenger who shall arrive in the State by vessels from any foreign port or place (who is not a citizen of the United States) is lunatic, idiotic, deaf, dumb, blind, crippled, or infirm, and is not accompanied by relatives who are able and willing to support him, or is likely to become a public charge, or has been a pauper in any other country, or is from sickness or disease (existing either at the time of sailing from the port of departure or at the time of his arrival in the State) a public charge, or likely soon to become so,
18	Chy Lung v. Freeman (1875) or is a convicted criminal, or a lewd or debauched woman; and no such person shall be permitted to land from the vessel, unless the master or owner or consignee shall give a separate bond in each case, conditioned to save harmless every county, city, and town of the State against any expense incurred for the relief, support, or care of such person for two years thereafter.
19	Chy Lung v. Freeman (1875) What is the problem with the amount of discretion given the California immigration commissioners? “It is hardly possible to conceive a statute more skilfully framed, to place in the hands of a single man the power to prevent entirely vessels engaged in a foreign trade, say with China, from carrying passengers, or to compel them to submit to systematic extortion of the grossest kind.”
20	Chy Lung v. Freeman (1875)
21	Chy Lung v. Freeman (1875)
22	Chy Lung v. Freeman (1875)
23	Page Act, 18 Stat. 477 (1875)
24	Page Act, 18 Stat. 477 (1875)
25	Case of the Chinese Wife (1884) Whether wife of a Chinese laborer can enter United States without a certificate after the passage of the Chinese Exclusion Act
26	Exclusion Act sec. 3
27	Exclusion Act sec. 6
28	Case of the Chinese Wife (1884) The fiction of the law as to the unity of the two spouses does not apply under the restriction act. As a distinct person she must be regarded, and therefore must furnish the certificate required, either by section 4 or by section 6 of the act of 1884.
29	Blackstone’s Commentaries, Bk. 1, Ch. XV By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover she performs every thing; and is therefore called in our law-french a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture.
30	Case of the Chinese Wife (1884) Field concludes that the wife is a “distinct person” and must furnish a certificate. Why doesn’t Field consider Ah Moy under this principle of marital unity?
31	Case of the Chinese Wife (1884) For Field, the only real issue is what kind of certificate. The Government contends that the wife has the status of the husband—she’s a laborer because he’s one, which would mean she would need laborer’s certificate. Field concludes that she needs an “other than laborer” certificate
32	Case of the Chinese Wife (1884) Field says that he is sensitive to the “hardship” of separating “man and wife.” What is his solution? We are not insensible to the earnest remarks of counsel as to the hardship of separating man and wife. With our notions of the sacredness of that relation, they appeal with striking force. But here the relation was voluntarily assumed in the face of the law forbidding her coming to the United States without the required certificate. And they need not now be separated. He can return with and protect his child-wife in the celestial empire.
33	Case of the Chinese Wife (1884)(Sawyer, J.) For Sawyer, what is the dreaded consequence of allowing a Chinese wife entry based upon her husband’s certificate? If such Chinese laborer has a right to bring into the country with him a wife who has never been here before, he must, upon similar grounds, be entitled to bring with him all his minor children; and, under this right, the number of Chinese laborers who are entitled to come to the United States will be greatly extended beyond the number who can enter by virtue of their own individual rights.
34	Case of the Chinese Wife (1884)(Sawyer, J.) Petitioner’s argument: Treaty provides “all Chinese laborers who are now in the United States shall be allowed to go and come of their own free will and accord, and shall be accorded all the rights, privileges, immunities, and exemptions which are accorded to the citizens and subjects of the most favored nations;” ‘Rights and privileges’ accorded to citizens of all other nations, are, to come of their own free will and accord, and to bring their wives and children with them; The treaty secures these same rights and privileges to returning Chinese laborers of bringing their wives and children with them.
35	Case of the Chinese Wife (1884)(Sawyer, J.) The policy of the act manifestly is to exclude the entire class of Chinese laborers as a class. The wife of a Chinese laborer is, it seems to me, one of the class,-- that her status partakes of and must follow the status of the husband as one of his class,-- whether she, in fact, labors or not; and, as one of the class, I think the petitioner is excluded by the act, so far as any individual personal right of her own is concerned.
36	Case of the Chinese Wife (1884)(Sawyer, J.) [T]he husband is not entitled to bring his wife into the country, she being in fact a Chinese laborer, and never having been here before; and that, upon the marriage of the petitioner in this case with a Chinese laborer, she took upon herself the status of the husband as one of the class who are not now permitted to enter the United States, without reference to her former status.
37	Lorenzo Sawyer to Henry Bancroft (1893) If they would never bring their women here and never multiply and we would never have more that we could make useful, their presence would always be an advantage to the State. . . so long as the Chinese don’t come here to stay. . . Their labor is highly beneficial to the whole community. . . the difficulty is that they are beginning to get over the idea that they must go back. Then they begin to multiply here and that is where the danger lies in my opinion. When the Chinaman comes here and don’t bring his wife here, sooner or later he dies like a worn out steam engine; he is simply a machine, and don’t leave two or three or half dozen children to fill his place.
38	United States v. Gue Lim (1900) The question is, whether under the act of 1884, construed in connection with the treaty of 1880, the wife of a Chinese merchant, domiciled in this country, may enter the United States without a certificate, because she is the wife of such merchant.
39	United States v. Gue Lim (1900) While the literal construction of the section would require a certificate… from every Chinese person, other than a laborer, who should come into the country, yet such a construction leads to what we think an absurd result, for it requires a certificate for the wife of a merchant, among others, in regard to whom it would be impossible to give the particulars which the statute requires shall be stated in such certificate.
40	United States v. Gue Lim (1900) To hold that a certificate is required in this case is to decide that the woman cannot come into this country at all, for it is not possible for her to comply with the act, because she cannot in any event procure the certificate even by returning to China. She must come in as the wife of her domiciled husband or not at all.
41	United States v. Gue Lim (1900) The purpose of the 6th section, requiring the certificate, was not to prevent the persons named in the second section from coming into the country, but to prevent Chinese laborers from entering under the guise of being one of the classes permitted by the treaty. It the coming of Chinese laborers that the act is aimed against.
42	Act of Feb. 20, 1907 Any alien who shall be found an inmate of or connected with the management of a house of prostitution or practising prostitution after such alien shall have entered the United States, or who shall receive, share in, or derive benefit from, any part of the earnings of any prostitute; or who is employed by, in, or in connection with any house of prostitution or music or dance hall or other place of amusement or resort habitually frequented by prostitutes, or where prostitutes gather,
43	"or who in any way..." or who in any way assists, protects, or promises to protect from arrest any prostitute, shall be deemed to be unlawfully within the United States, and shall be deported in the manner provided by sections twenty and twenty-one of this act. . . .
44	Low Wah Suey v. Backus (1912) Petitioner’s arguments: No counsel allowed “during all stages of the preliminary proceedings, and was examined without the presence of her counsel and against her will by the immigration officer at the port of San Francisco” Government “refused to take the necessary steps to enforce the attendance of witnesses to testify on behalf of the petitioner” Government “acted in bad faith and arbitrarily in receiving a report based on hearsay information, the name of the informer being withheld from Li A. Sim, and no opportunity being given her to offset or disprove such hearsay evidence”
45	Low Wah Suey v. Backus (1912) The statute in terms applies in general to all aliens. An alien has been defined to be 'one born out of the jurisdiction of the United States, and who has not been naturalized under their Constitution and laws.‘ . . . Within this general description Li A. Sim would clearly come, unless her status was changed, as is alleged, by marriage to a Chinaman of American birth, who is consequently an American citizen.
46	Low Wah Suey v. Backus (1912) Is Li Sim an alien (statute applies to aliens)? Applicable Statute: Any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen. “Li A. Sim was a Chinese person not born in this country, and could not become a naturalized citizen under the laws of the United States”
47	Low Wah Suey v. Backus (1912) Petitioner argues “Congress did not intend, notwithstanding the terms of the act in question, to make it applicable to a Chinese woman married to an American citizen lawfully domiciled within this country” Court responds: “We find nothing in the previous decisions of this court which exempts Li A. Sim from the operations of the statute as an alien person. . . . The object of the act was to exclude alien prostitutes, or, if they entered and were found violating the statute within the period prescribed, to return them to the country whence they came. A married woman may be as objectionable as a single one in the respects denounced in the law.”
48	Act of March, 1907, 34 Stat. 1228 [A]ny American woman who marries a foreigner shall take the nationality of her husband. At the termination of the marital relation she may resume her American citizenship, if abroad, by registering as an American citizen within one year with a consul of the United States, or by returning to the United States. Repealed in 1922.
49	Ex Parte Fung Sing (1925) Fung Sing was born in Washington in 1898. She went to China with her family in 1903 and married a Chinese citizen in 1920. Her husband died in 1924 and she returned to the United States in 1925, where she was denied admission because she was ineligible for citizenship under the Immigration Act of 1924. She argues that the right to resume her American citizenship was vested under the act of 1907.
50	Ex Parte Fung Sing (1925) While the petitioner was born in the United States, by the provisions of the laws, supra, for the purposes of admission or citizenship, she is considered as born in the country of which she is a citizen. Being of an excluded race, and a citizen of such excluded racial ancestry, she is not eligible to citizenship, and under the law may not be admitted.
51	Sex Ratio in California In 1852 in California there were 11,783 Chinese men and only seven women. In 1870, there were 4,566 Chinese women out of a total of 63,199 Chinese
52	Chan, The Exclusion of Chinese Women What have been the various explanations given by historians for the imbalanced sex ratio for Chinese immigrants to the United States? The nature of Chinese society (patriarchy) Men travel between countries and provinces, women just run around the kitchen stove. The mission of sojourners Cost of living differentials Anti-Chinese hostility
53	C. Lee, Prostitutes and Picture Brides Developing the Western United States Economic development (cheap labor) Chinese women kept out because bachelor work force was cheap for mining and railroad construction. Permanent settlement (family settlement) Japanese immigrants needed on West Coast because of turn of the century labor shortage in agriculture. Farming benefits from family labor—Japanese women, unlike Chinese women, were allowed to join their husbands.
54	Chinese Prostitutes in San Francisco 1860: 85-97% of Chinese females apparently were prostitutes 1870: 71-72% of Chinese females were prostitutes (n=1,452) 1880: 21-50% of Chinese females were prostitutes (n=444) Based upon census records
55	Prostitutes in Gold Rush California Prof. Patricia Nelson Limerick They look so charming in the movies. . . . The stories seem to be close to pure misery: miserable living conditions, risk of physical violence every working moment, wretched rate of pay, drug addiction, alcoholism. Suicide was a common way for a prostitute's life to end. It's a very grim, stark pushed-to-the-edge kind of life.
56	Prostitutes in Gold Rush California The West (documentary) Women who were not prostitutes were so rare in the goldfields that the Forty-niners stood for hours just to gaze upon one. Miners called them “petticoated astonishments.”
57	The miners came in forty-nine. The whores in fifty-one. They rolled around on the bathroom floor. Then came the native son.
58	Prostitutes in Gold Rush California Judy Yung in her article “Chinese American Women” in the Asian American Encyclopedia (1995) “Because of the sex imbalance and laws that forbade interracial marriage, the majority of Chinese women in 19th century America were prostitutes who had been kidnapped, lured, or purchased from poor parents in China and sold to America for high profits.”
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60	Why did poor parents sell their daughters? In desperate times, poor families resorted to selling of children, infanticide, abandonment Patriarchal society means family that raised a girl wouldn’t benefit from her labor Daughters aren’t as valued as sons Daughters are goods upon which one loses money A grown son is an asset, a grown daughter a liability Ten pretty daughters are not equal to one crippled son
61	Laws Against Chinese Prostitutes 1865: San Francisco passed “Order to Remove Chinese Women of Ill-Fame from Certain Limits in the City” 1866: California Legislature passed “An Act for the Suppression of Chinese Houses of Ill Fame” 1870: California Legislature passed “An Act to Prevent the Importation of Mongolian, Chinese, and Japanese Females”
62	Chan, The Exclusion of Chinese Women Prostitutes of many nationalities lived and worked in Gold Rush California, but authorities singled out Chinese prostitutes for suppression. Why?
63	Chan, The Exclusion of Chinese Women Wives of Chinese laborers What would be required for the wife of a Chinese laborer to be able to enter the United States after 1882?
64	Chan, The Exclusion of Chinese Women Wives of “domiciled” Chinese merchants Did wives of merchants need certificates to enter? What other hurdles or obstacles were present?
65	Chan, The Exclusion of Chinese Women U.S.-born Chinese women A woman of Chinese descent born in the United States had birthright citizenship. What problems did these women face when visited China and then sought readmission to the United States?
66	Chan, The Exclusion of Chinese Women Wives of U.S. Citizens of Chinese Ancestry What generally happened in these case? What reason did immigration officials give for barring entry in these cases? What was the impact of the 1924 immigration law?
67	Chan, The Exclusion of Chinese Women Daughters of U.S. citizens What were “paper sons” and “paper daughters”? Why did the first daughter case occur in 1925?
68	Chan, The Exclusion of Chinese Women Deportation of prostitutes How did the immigration laws provide for the deportation of prostitutes? What type of process was afforded in terms of hearings?
69	Chan, The Exclusion of Chinese Women What conclusions does Professor Chan draw about the exclusion of Chinese women?
70	John F. Miller, chair of the Committee on the Chinese, California Constitutional Convention 1879 Were the Chinese to amalgamate at all with our people, it would be the lowest, most vile and degraded of our race, and the result of that amalgamation would be a hybrid of the most despicable, a mongrel of the most detestable that has ever afflicted the earth.
71	Anti-miscegenation statutes in 1910 that applied to Asian Americans Arizona California Mississippi Thirty states had anti-miscegenation statutes Montana Nevada Oregon Utah
72	Anti-miscegenation statutes in 1950 that applied to Asian Americans Arizona California Mississippi Montana Nevada Oregon Utah Georgia Idaho Maryland Missouri Nebraska South Dakota Virginia Wyoming Thirty states had anti-miscegenation statutes
73	Georgia Code § 53-312 (1933) The term “white person” shall include either only persons of white or Caucasian race, who have no ascertainable trace of either Negro, African, West Indian, Asiatic Indian, Mongolian, Japanese, or Chinese blood in their veins.
74	Anti-miscegenation statutes and Asian Americans Anti-miscegenation statutes exist across the country (not just in Jim Crow South) Statutes existed to preserve white racial identity—any group perceived as non-white was prohibited from mixing with whites No anti-miscegenation statute was aimed solely at Asian Americans In states where non-whites were prohibited from marrying whites, Asian Americans were included when they constituted a visible presence (more than 1/2000^th of the state’s population) Karthikeyan & Hrishi, Preserving Racial Identity: Population Patterns and the Application of Anti-Miscegenation Statutes to Asian Americans, 1910-1950, Berkeley Asian L. J. (2002)
75	Roldan v. Los Angeles County (1938) California statute proscribes marriages between whites and “Mongolians.” Issue: is a Filipino a “Mongolian”? What sources are used to determine this answer? California legislature added “Malay” to anti-miscegenation statute that same year
76	Naim v. Naim (Va. 1955) Marriage between “a Chinese” and “a white person” declared void “We are unable to read in the Fourteenth Amendment to the Constitution, or in any other provision of that great document, any words or any intendment which prohibit the State from enacting legislation to preserve the racial integrity of its citizens, or which denies the power of the State to regulate the marriage relation so that it shall not have a mongrel breed of citizens. . . .”
77	Naim v. Naim (Va. 1955) We find there no requirement that the State shall not legislate to prevent the obliteration of racial pride, but must permit the corruption of blood even though it weaken or destroy the quality of its citizenship.
78	Loving v. Virginia (S. Ct. 1967) Trial judge in Virginia Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix
79	Loving v. Virginia Virginia Code § 20-59 Punishment for marriage. -- If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.
80	Loving v. Virginia Virginia Code § 20-58 Leaving State to evade law. If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.
81	Loving v. Virginia In upholding the constitutionality of these provisions. . . the Supreme Court of Appeals of Virginia referred to its 1955 decision in Naim v. Naim…. In Naim, the state court concluded that the State's legitimate purposes were “to preserve the racial integrity of its citizens,” and to prevent “the corruption of blood,” “a mongrel breed of citizens,” and “the obliteration of racial pride,” obviously an endorsement of the doctrine of White Supremacy.
82	Loving v. Virginia There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. . . . There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.
83	Loving v. Virginia These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.