Update 05/27/2009: Thanks to David Coyne for catching an error I made. I had stated that Asian-Americans were the only minority group to have voted as a majority for Proposition 8. This is false. According to a CNN exit poll, Asian-Americans were evenly split for and against Proposition 8, with a slight plurality voting no. The post has been edited to account for this.
That said, the post's intent and content remain valid; it is still troubling to me that a full 49% of Asian-Americans supported Proposition 8, given this history.
To my friends in California -
I heard about the Supreme Court ruling. And while it may have been consistent with expectations, I know it was not consistent with your hopes.
I am reminded of the many instances of separate but equal justice that California in particular, and nations in general, have visited upon their citizens.
And while the discussion henceforth addresses issues concerning all Americans, I wish to specifically address Californian Asian-Americans. I am doing this partly because of discussions I have had with family and gay Asian-American men. I am also doing this because it is disturbing to me that Asian-Americans were evenly split for and against Proposition 8. To their credit, Asian-Americans were the only ethnic minority group to vote as a plurality against Proposition 8. The reasons for why 49% voted yes are complicated, and likely have to do with culture, religion, economics, and politics. I will not discuss them here.
What I will discuss is a brief history of legislation affecting immigration and rights of Asians in the United States, specifically the Chinese Exclusion Act of 1882, the Gentleman’s Agreement of 1907, the Immigration Act of 1917, and the Immigration Act of 1924. I will then attempt to draw historical lessons that one might be able to draw for gay rights.
The Chinese Exclusion Act of 1882
The Chinese Exclusion Act of 1882 banned the immigration of “skilled and unskilled laborers and Chinese employed in mining” for ten years. Chinese non-laborers who wished to immigrate had to prove they were qualified, a difficult task given vague and conflicting interpretations of the standard of proof. Chinese currently in residence in the United States were excluded from re-entering the United States if they chose to leave, and were barred from obtaining citizenship. Subsequent modifications clarified that it applied to ethnic Chinese regardless of country of origin, as well as extending the term of the Exclusion act, first for ten years (the 1892 Geary Act), then indefinitely in 1902. The Geary Act was appealed up to the U.S. Supreme Court, where it was upheld in a 6-3 decision. (Fong Yue Ting v. United States, 149 U.S. 698, 13 S. Ct. 1016. 37 L.Ed. 905 (1893) )
The Gentleman’s Agreement of 1907
Racial tensions in California were increased after Japanese schoolchildren in San Francisco were moved to an Oriental-only school following the 1906 earthquake. Their parents protested, perceiving (correctly) that their children were receiving an inferior education compared to that available at previously integrated schools. Resident Japanese cited the Treaty of 1894, which held that Japanese immigrants would be accorded equal rights in America.
Roosevelt had a positive view of Japan – he had negotiated the peace treaty between Russia and Japan, and garnered a Nobel Peace Prize for the effort. He also saw the need to not antagonize a growing regional power in an area where the United States had recently acquired interests in the Spanish-American war. At the same time, he had to mollify a large chorus of anti-immigration supporters in both California and Congress.
Collective efforts culminated in a compromise crafted by Theodore Roosevelt as a compromise called the Gentlemen’s Agreement of 1907. The agreement held that Japanese students would be allowed to attend public schools. In return, the US would not officially restrict immigration. In return, the Empire of Japan would not issue new passports for laborers trying to enter America. This was a de facto, if not de jure, ban on immigration. (That’s legalspeak for saying that there was no actual act/treaty, but simply a written, if unsigned, understanding between the two nations, taking the form of a six-point document.)
I had some trouble accessing the actual text online – if you find a link to the primary source document, it would be much appreciated.
The Immigration Act of 1917
The Immigration Act of 1917, also known as the Asiatic Barred Zone Act, passed over President Wilson’s 1916 veto, barred immigration from the vast majority of the Asian landmass , encompassing the Philippines, the Dutch Indies, all of Central, South, and Southeast Asia. China and Japan were already excluded under the Chinese Exclusion Act and the Gentlemen’s Agreement.
The Immigration Act of 1924
The Immigration Act of 1924 was passed with strong support from both houses, whose members were inspired by eugenicist Madison Grant’s 1916 book, The Passing of the Great Race. In a horrible twist of irony, it was also strongly supported by Samuel Gompers, a founder of the AFL and a Jewish immigrant.
The Act restricted the annual quota of any quota nationality at two percent of the existing foreign born residents of such nationality. Ironically, in the context of the modern immigration debate, there were no quotas set on immigration from Latin America.
As a rule, no alien ineligible to become a citizen shall be admitted to the United States as an immigrant – this was targeted directly at Japanese aliens. This Act essentially nullified the Gentlemen’s Agreement and infuriated the Empire of Japan.
Epilogue
Chinese nationals residing in the country were permitted to become naturalized citizens by the 1943 Magnuson Act. Anti-miscegenation (anti- interracial marriage) laws targeting Chinese-Americans were not repealed in California until 1948.
Interestingly, Chapter 7 of Title 8 of the United States Code is headed, “Exclusion of Chinese”, though all its constituent sections have been repealed. It is the only one of 15 chapters in Title 8 (Aliens and Nationality) that targets a specific ethnic group.
The Immigration and Nationality Act of 1965 abolished nation-based quotas, instead creating a system of a limited number of visas, capped at 20,000 per country, available on a first-come, first-serve basis. Family reunification visas were unlimited – it is only in recent years that country-origin quotas for spouses and other relatives of US citizens have been instituted. The Act was strongly championed by Senator Ted Kennedy.
This act is credited with changing the demographic makeup of America, and, according to one Boston Globe article, may have played a role in Barack Obama’s victory.
Application to Proposition 8 and Gay Rights in California/America
If you are Hawai’ian and ethnically Japanese or Chinese, you may largely owe your existence in America to a loophole that permitted limited immigration to the territory of Hawai’i.
If your family lived stateside, it’s likely they exploited the ability to immigrate from Hawai’i to the continental United States once establishing residency in Hawai’i.
If your family has owned property for a couple generations, it is likely because your parents, or grandparents, or great-grandparents, had the title of the land made in their children’s names, to avoid a citizenship requirement.
If you are a product of an interracial marriage involving Chinese and Caucasian parents, it is because California repealed its anti-miscegenation law in 1948.
This is your heritage. This is where you come from.
It is true that each individual is held account for their own actions, and not the actions of their descendants or for their forebearers. (Det 24:16)
But you should know that the people of California, and of the United States, have historically made many grave mistakes, based upon a combination of economic protectionism, racial hygiene pseudo-theory, and xenophobia.
And so, what are the differences between these cases, germane to your existence and rights as a citizen, and this present debate? I welcome a clear elucidation of the differences between those previous cases and those concerning same-sex couples in California, though you will excuse me if I do not hold my breath.
You might be opposed homosexuality in general, and gay marriage in particular, on biblical grounds. If, at the end of this, you feel that biblical literalism is more important than historical analogy, I cannot fault you for it. Reasonable people can, at least, reason through the logical arguments given a certain set of assumptions. And we can question each other's assumptions without attacking our ability to reason, or worse, our motivations. In such a case, I would simply state that we have different assumptions. And I would remind all that assumptions, and the policies crafted on them, have important consequences, consequences for which all of us will ultimately be judged.
In the process of researching this post, and a previous post on homosexuality and the Bible, I have explored my assumptions and feelings on this issue – not comprehensively, but with greater awareness than when I had started. By doing so, I’ve had to confront a lot of fear and emotion that could not be captured by concrete, articulated assumptions. It has been a humbling experience, in that I have found myself to be far less rational, far less precise, far less knowledgeable, and far less wise than I had long assumed. Even though I may put on a relatively humble demeanor, I had prided myself on all of these qualities – to find them lacking in many ways has been genuinely embarrassing to me.
But I think it comes down to this – we are either equal before the law or we are not. De facto, the wealthy, influential, attractive, and clever enjoy advantages that most do not. But that should be a failing of human nature, not of our laws. Even if the ideal is impossible to realize, it is that commitment to clearer, more just law that defines good jurists, and more generally, good citizens.
No system of laws can capture everything that we use to govern our lives. Nor can it remove the individual duty to discover and act upon their principles in our countless trials, daily and intergenerational. But our laws do say something about ourselves: who we are, what we believe, and what we value.
So I have given up on de facto equality. But de jure, I cannot abide it. If we are a society that not only accepts this degree of inequality, not only as a byproduct of human weakness, but as law, then we must question whether we truly value these gay men and women as full human beings, capable of the full range of abilities, emotions, thoughts, and ambitions as heterosexual individuals.
One must recall that every constitutional amendment (save one conspicuous exception) has involved clarifying, defending, or expanding the rights of its citizens. We can argue whether or not actual Federal law behaves in this way about a number of issues – gun control legislation (II), the Patriot Act (I, IV, V, VI), torture (VIII), and, perhaps most recently, the bankruptcy proceedings of Chrysler (and, with all likelihood, General Motors) (IV, V). But the key point is that the U.S. Constitution, and American history, have demonstrated that the trajectory of our nation's laws show a commitment to protecting individual rights, to ensuring full equality before the law.
Separate but equal is not a policy California, or America, can be proud of, or even justify as a necessary evil. It is ignorant and shameful. I am embarrassed that it even has to be an issue, especially with so many other pressing problems facing California and the world. I cannot conceive why any Asian-American in California who knows this history; who has some sense of the fragility that is justice; who fears Cicero is correct when he says “the laws are silent in times of war”, and that all political issues can be constructed as wars of faith, mind, and matter; who has felt the sting of discrimination and the joy that is simple inclusion; who worries that California is a ship, sinking fast, run aground by poor governance inspired by ideology; who believes that there are some things worth questioning -- why such a man or woman could in good conscience vote Yes on Prop 8, or continue to deny equality under the law to homosexual couples.
Each of us, of all nationalities and genders and orientations, owes our existence to the fights and sacrifices – bloody and brutal - of all those who came before us, both biologically and socially. And we owe it to all those who are now living, who contribute to the sum total of society, whose dynamic tension somehow contributes to its functioning. It is for this reason, as well as a matter of personal principle, which makes me not hate those who voted yes, or those who continue to oppose equality before the law for gay men and women, or transgendered individuals. For that would be to violate that basic assumption, that core tenet of my belief system – that all are equal before the law, and that all are equally judged before God on their faith, their character, and the sum total of their actions.
So I do not hate you if you are opposed to same-sex marriage, or if you voted in favor of Proposition 8. But I do vehemently disagree with you on this. While I welcome discussion and dialogue, I am aware that a fundamental disagreement about assumptions – what are superordinate and subordinate principles that ought to guide law in general, and this law in particular – will not shift anytime soon.
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