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November 20 - 26, 1997
The Freedom to Marry
What Asian Americans have in common with same-sex marriages
BY MYRON DEAN QUON
There is a little-explored but important connection between the Asian Pacific Islander struggle to end race discrimination and the lesbian and gay community's struggle for equality. Fortunately, the National Asian Pacific American Bar Association (NAPABA) will shed more light on the linkage of these civil-rights battles when it convenes its annual conference in San Francisco on Nov. 21-22. For the first time, a NAPABA panel will compare the fight to end the prohibition on interracial marriage to the current effort to end the prohibition on marriage between same-sex couples.
In all 50 states today, lesbian and gay couples are denied the freedom to marry no matter how long they have been together, no matter how committed their relationships, and no matter how much they and their families need the protections, benefits, and responsibilities that come with civil marriage. But same-sex couples have not been alone in suffering marriage discrimination.
In 1967, laws in 16 states prohibited interracial marriages. These anti-miscegenation laws, based on white supremacist prejudice and assertions about "divine will," had a lengthy history. This year marks the 30th anniversary of the defeat of these laws with the United States Supreme Court decision in Loving v. Virginia. The Loving case involved a marriage between an African American woman and a European American man, but the laws under which they were prosecuted also had a malevolent impact on APIs. Fifteen states, including California, once had laws specifically prohibiting marriage between whites and anyone of API descent.
In California, where API communities have existed in substantial numbers for many generations, the history of discrimination is particularly extensive. In 1850, the California Legislature passed a law declaring "all marriages of white persons with negroes or mulattos" to be "illegal and void" in the state. Thirty years later, after large numbers of Chinese men immigrated to California in search of work, the state Legislature passed a law prohibiting the issuance of a marriage license to any white person who wanted to marry a "Mongolian" (the term then used by the California Legislature to characterize people of Chinese descent). In 1905, the California Legislature expanded the state's anti-miscegenation law, declaring "illegal and void" all marriages between whites and "Mongolians."
In the early 1930s, an API man and a woman of European descent challenged the state in Roldan v. Los Angeles County. A California appellate court ruled in their favor, but for racist reasons. The court ruled that California's marriage law did not apply to Solvador Roldan because, as a Filipino, he was "Malay," not "Mongolian." The California Legislature amended the marriage law within a few months of the Roldan decision in order to nullify the Roldans' marriage, making it clear that all marriages between APIs and whites would be found prohibited and void in California.
Finally, with its 1948 ruling in Pérez v. Sharp, the California Supreme Court foreshadowed the U.S. Supreme Court's Loving decision and became the first state high court to hold that laws based on race limiting who one could marry violate constitutional guarantees of equal protection. This groundbreaking decision is linked to the racial diversity of California's population, 15 percent of which is now made up of people of API heritage.
Today, in Baehr v. Miike, three interracial couples (each including one partner who is API and one who is not) are challenging Hawaii's prohibition on their getting married due to their being in same-sex relationships. The case is back before the Hawaii Supreme Court after a prior favorable ruling from that court, followed by a favorable lower-court ruling. It could be decided any day.
Consequently, Hawaii, a state with an API majority, soon may be the first state to end civil-marriage discrimination against lesbians and gay men. Meanwhile, API organizations are illuminating existing parallels between these two struggles to gain the freedom to marry.
In 1994, the Japanese American Citizens League (JACL) became the first non-gay organization, after the American Civil Liberties Union, to support same-sex marriage. It endorsed the Marriage Resolution, a document affirming marriage as a basic human right that should not be barred to same-sex couples.
Since then, the JACL has been joined by other API organizations, including the Asian American Legal Defense and Education Fund, the Gay Asian Pacific Alliance, the Gay Asian Pacific Support Network, and the Japanese American Bar Association.
There are several steps we can take in joining the battle to ensure full marriage rights for everyone. The most crucial work continues to be educating the larger public. Many people have only recently been asked to think about how the denial of the freedom to marry hurts gay and lesbian families. This past summer, polls showed that only 56 percent of Americans say that they are opposed to same-sex marriages. With continuing dialogue and outreach, a shift to majority support for same-sex marriage is possible. We must reach out to organizations in our communities to endorse the Marriage Resolution and spread the word about the continued damage caused by marriage discrimination.
Conservatives in the California Legislature have attempted to pass legislation that would prevent recognition of same-sex marriages, which may soon be allowed in Hawaii. These opponents rely on assertions about history and divine will strikingly similar to those used to attack interracial marriages in the past.
Fortunately, a coalition of civil-rights advocates--gay and non-gay, as well as API and non-API--have so far been able to defeat this anti-gay and anti-marriage legislation.
However, the same extremist groups that placed Proposition 187--restricting immigrants' access to basic human services--and Proposition 209--eviscerating affirmative-action programs--on the California ballot will attempt to place an anti-marriage initiative on the November 1998 ballot in California.
The API community, which recognized the discriminatory intent and effect of these propositions, can help promote discussion of same-sex marriage and facilitate the defeat of such an anti-marriage initiative. In addition, a ballot initiative is already set for November 1998 in Hawaii. If passed, this initiative would give the Hawaii Legislature the power to amend the state constitution to ban marriages between same-sex couples.
By educating our legislators and showing our opposition to the passage of discriminatory legislation, we can prevent our country from resembling the broken and divided United States of 1966 when marriages between couples like the Lovings were recognized in some states and not others.
In 1997, society agrees that discrimination based on race is wrong and morally reprehensible. With each passing year, more and more Americans agree that discrimination based on sexual orientation is also abominable. Through a dialogue about the parallels between discrimination against interracial couples and against same-sex couples, and through outreach for endorsements of the Marriage Resolution, we can further civil-rights progress for the API community and ensure equality for everyone, including lesbian and gay Asian Pacific Islanders.
Myron Dean Quon is a staff attorney for Lambda Legal Defense and Education Fund, the nation's oldest and largest legal organization fighting for the civil rights of lesbians, gay men, and people with HIV and AIDS. Lambda is co-counsel in the Hawaii marriage case.
1998 AsianWeek. The information you receive on-line from AsianWeek is protected by the copyright laws of the United States. The copyright laws prohibit any copying, redistributing, retransmitting, or repurposing of any copyright protected material.