The Intersection
of Race and Gender
Asian Americans and the Law
Dr. Steiner
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“Pacific Railroad Complete,” Harper’s Weekly (June 12, 1869)
Chy Lung v. Freeman (1875)
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Issue: Whether California statute
regulating immigration is constitutional
“It is a most extraordinary statute.”
What’s its purpose?
Chy Lung v. Freeman (1875)
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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,
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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,
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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,
Chy Lung v. Freeman (1875)
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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.
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.”
Chy Lung v. Freeman (1875)
The commissioner has but to go aboard a vessel
filled with passengers ignorant of our language
and our laws, and without trial or hearing or
evidence, but from the external appearances of
persons with whose former habits he is unfamiliar,
to point with his finger to twenty, as in this case,
or a hundred if he chooses, and say to the master,
‘These are idiots, these are paupers, these are
convicted criminals, these are lewd women, and
these others are debauched women….’
Chy Lung v. Freeman (1875)
Individual foreigners, however distinguished at home
for their social, their literary, or their political
character, are helpless in the presence of this potent
commissioner. Such a person may offer to furnish
any amount of surety on his own bond, or deposit
any sum of money; but the law of California takes no
note of him. If is the master, owner, or consignee of
the vessel alone whose bond can be accepted; and
so a silly, an obstinate, or a wicked commissioner
may bring disgrace upon the whole country, the
enmity of a powerful nation, or the loss of an equally
powerful friend.
Chy Lung v. Freeman (1875)
•What is the constitutional flaw in the statute?
•The passage of laws which concern the
admission of citizens and subjects of foreign
nations to our shores belongs to Congress, and
not to the States. It has the power to regulate
commerce with foreign nations: the responsibility
for the character of those regulations, and for the
manner of their execution, belongs solely to the
national government. If it be otherwise, a single
State can, at her pleasure, embroil us in
disastrous quarrels with other nations.
Page Act, 18 Stat. 477 (1875)
Page Act, 18 Stat. 477 (1875)
Case of the Chinese Wife (1884)
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Whether wife of a Chinese laborer can
enter United States without a certificate
after the passage of the Chinese Exclusion
Act
Exclusion Act sec. 3
Exclusion Act sec. 6
Case of the Chinese Wife (1884)
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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.
Blackstone’s Commentaries, Bk. 1, Ch. XV
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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 lawfrench 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.
Case of the Chinese Wife (1884)
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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?
Case of the Chinese Wife (1884)
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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
Case of the Chinese Wife (1884)
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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.
Case of the Chinese Wife
(1884)(Sawyer, J.)
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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.
Case of the Chinese Wife
(1884)(Sawyer, J.)
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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.
Case of the Chinese Wife
(1884)(Sawyer, J.)
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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.
Case of the Chinese Wife
(1884)(Sawyer, J.)
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[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.
Lorenzo Sawyer to Henry Bancroft (1893)
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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.
United States v. Gue Lim (1900)
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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.
United States v. Gue Lim (1900)
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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.
United States v. Gue Lim (1900)
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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.
United States v. Gue Lim (1900)
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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.
Act of Feb. 20, 1907
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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,
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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. . . .
Low Wah Suey v. Backus (1912)
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Petitioner’s arguments:
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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”
Low Wah Suey v. Backus (1912)
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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.
Low Wah Suey v. Backus (1912)
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Is Li Sim an alien (statute applies to aliens)?
Applicable Statute:
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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”
Low Wah Suey v. Backus (1912)
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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.”
Act of March, 1907, 34 Stat. 1228
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[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.
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Repealed in 1922.
Ex Parte Fung Sing (1925)
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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.
Ex Parte Fung Sing (1925)
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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.
Sex Ratio in California
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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
Chan, The Exclusion of Chinese Women
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What have been the various explanations
given by historians for the imbalanced sex
ratio for Chinese immigrants to the United
States?
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The nature of Chinese society (patriarchy)
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Men travel between countries and provinces,
women just run around the kitchen stove.
The mission of sojourners
Cost of living differentials
Anti-Chinese hostility
C. Lee, Prostitutes and Picture Brides
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Developing the Western United States
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Economic development (cheap labor)
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Chinese women kept out because bachelor work
force was cheap for mining and railroad
construction.
Permanent settlement (family settlement)
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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.
Chinese Prostitutes
in San Francisco
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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)
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Based upon census records
Prostitutes in Gold Rush California
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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.
Prostitutes in Gold Rush California
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The West (documentary)
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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.”
The miners came in forty-nine.
The whores in fifty-one.
They rolled around on the
bathroom floor.
Then came the native son.
Prostitutes in Gold Rush California
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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.”
Why did poor parents sell their
daughters?
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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
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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
Laws Against Chinese Prostitutes
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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”
Chan, The Exclusion of Chinese Women
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Prostitutes of many
nationalities lived and
worked in Gold Rush
California, but
authorities singled
out Chinese
prostitutes for
suppression. Why?
Chan, The Exclusion of Chinese Women
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Wives of Chinese laborers
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What would be required for the wife of a
Chinese laborer to be able to enter the United
States after 1882?
Chan, The Exclusion of Chinese Women
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Wives of “domiciled” Chinese merchants
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Did wives of merchants need certificates to
enter?
What other hurdles or obstacles were
present?
Chan, The Exclusion of Chinese Women
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U.S.-born Chinese women
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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?
Chan, The Exclusion of Chinese Women
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Wives of U.S. Citizens of Chinese Ancestry
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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?
Chan, The Exclusion of Chinese Women
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Daughters of U.S. citizens
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What were “paper sons” and “paper
daughters”?
Why did the first daughter case occur in
1925?
Chan, The Exclusion of Chinese Women
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Deportation of prostitutes
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How did the immigration laws provide for the
deportation of prostitutes?
What type of process was afforded in terms of
hearings?
Chan, The Exclusion of Chinese Women
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What conclusions does Professor Chan
draw about the exclusion of Chinese
women?
John F. Miller, chair of the Committee
on the Chinese, California
Constitutional Convention 1879
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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.
Anti-miscegenation statutes in 1910
that applied to Asian Americans
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Arizona
California
Mississippi
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Thirty states had antimiscegenation statutes
Montana
Nevada
Oregon
Utah
Anti-miscegenation statutes in 1950
that applied to Asian Americans
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Arizona
California
Mississippi
Montana
Nevada
Oregon
Utah
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Georgia
Idaho
Maryland
Missouri
Nebraska
South Dakota
Virginia
Wyoming
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Thirty states had antimiscegenation statutes
Georgia Code § 53-312 (1933)
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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.
Anti-miscegenation statutes and
Asian Americans
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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 1/2000th
of the state’s population)
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Karthikeyan & Hrishi, Preserving Racial Identity: Population Patterns and the Application of
Anti-Miscegenation Statutes to Asian Americans, 1910-1950, Berkeley Asian L. J. (2002)
Roldan v. Los Angeles County
(1938)
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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
Naim v. Naim (Va. 1955)
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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. . . .”
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.
Loving v. Virginia (S. Ct. 1967)
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Trial judge in Virginia
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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
Loving v. Virginia
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Virginia Code § 20-59
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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.
Loving v. Virginia
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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.
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.
Loving v. Virginia
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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.
Loving v. Virginia
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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.