Mixed Race Studies

The Other Loving: Uncovering The Federal Government’s Racial Regulation of Marriage

New York University Law Review
Volume 86, Number 5 (November 2011)
pages 1361-1443

Rose Cuison Villazor, Professor of Law
University of California, Davis

This Article seeks to fill a gap in legal history. The traditional narrative of the history of the American racial regulation of marriage typically focuses on state laws as the only sources of marriage inequality. Overlooked in the narrative are the ways in which federal laws also restricted racially mixed marriages in the decades before 1967 (when the Supreme Court invalidated antimiscegenation laws in Loving v. Virginia). Specifically, during the American occupation of Japan after World War II, a combination of immigration, citizenship, and military laws and regulations led to restrictions on marriages along racial lines. These laws also converged to prevent married couples, many of whom were White American soldiers and local Japanese women, from living in the United States together. Accordingly, this Article claims that the confluence of immigration, citizenship, and military laws functioned as a collective counterpart to state antimiscegenation laws.

By unearthing this neglected history, this Article seeks to deepen the conventional account of the public regulation of mixed marriages. As the Article reveals, racial barriers to marriage were far more pervasive than previously acknowledged. Contrary to the familiar chronicle, racial restrictions on marriage occurred through federal laws, were enforced by federal officials, took place beyond state borders, and effected distinct harms on interracial couples whose experiences have largely escaped legal and scholarly inquiry. Recovering this lost history thus provides a more complete story of antimiscegenation regulation. Moreover, it draws attention to the largely undertheorized role that immigration law played in preventing interracial marriages and provides insight into contemporary debates on federal involvement in marriage regulation.

• INTRODUCTION
• I. FEDERAL EXCLUSION OF RACIALLY INADMISSIBLE WIVES
  • A. The Conventional Narrative of Antimiscegenation History
  • B. The Story of John and Helene Bouiss
  • C. Bonham v. Bouiss: Between Wife and Country
• II. DISENTANGLING THE FEDERAL ANTIMISCEGENATION REGULATORY SCHEME
  • A. Citizenship Law and Race
  • B. Immigration Law, Racial Inadmissibility, and Construction of a White Nation
  • C. Military Marriage Regulations
• III. THE CONVERGENCE OF FEDERAL LAWS FACILITATED BARRIERS TO INTERRACIAL MARRIAGES ABROAD
  • A. The War Brides Act
  • B. Immigration Inadmissibility as a Basis for Denying Marriages to Japanese Spouses
  • C. Immigration Law’s Bar Against Racially Inadmissible Wives
• IV. BOUISS AS THE OTHER LOVING
  • A. Bouiss and the Amendments to the War Brides Act
  • B. Congressional Recognition and Remedy of Obstacles to Interracial Marriages
• V. THE CONSEQUENCES OF THE FEDERAL ANTIMISCEGENATION REGULATORY SCHEME
  • A. Immigration Law’s Promotion of White Supremacy Through Marriage Restrictions
  • B. Extraterritorial Antimiscegenation Regulation
  • C. Country and Citizenship Versus Wives and Children
  • D. Mixed-Race Children and Lack of Citizenship
• VI. CONTEMPORARY IMPLICATIONS
• CONCLUSION

“Except under very unusual circumstances, United States military personnel, and civilians employed by the War Department, will not be granted permission to marry nationals who are ineligible to citizenship in the United States.”

—U.S. Army, Circular No. 6

INTRODUCTION

On May 9, 1946, Helene Emilie Bouiss, a half-Japanese, half-German woman, and her husband, John Bouiss, a White American soldier, arrived in Seattle, Washington, aboard a military ship. The two were newlyweds, married by the captain of the ship just days before landing in Seattle. Their decision to marry prior to coming to the United States was significant. This is because six months earlier, Congress had passed the War Brides Act of 1945 (War Brides Act), which conferred on persons who were serving or who had served in the U.S. military the right to sponsor the expedited admission of their spouses to the United States. Thus, Helene‘s marriage to John, an honorably discharged soldier, provided the basis for her entry into the country. Or so they thought…

…D. Mixed-Race Children and Lack of Citizenship

One of the most compelling and troubling aspects about the deployment of immigration and citizenship law in the restriction of overseas marriage was the effect that the inability to marry in Japan had on the children of American soldiers. Children of American-Japanese couples, like their counterparts in the United States, faced discrimination in Japan and were considered inferior because of their mixed racial background. As the Supreme Court noted in Loving, bans against interracial marriage were rationalized as helping to prevent “obliteration of racial pride” and a “mongrel breed of citizens.” Mixed children evidenced the “corruption of blood” that would have destroyed the “quality of . . . [Virginia’s] citizenship.” Indeed, such fear compelled a judge in Louisiana to refuse to issue a marriage license to an interracial couple as recently as October 2009. According to the judge, “[t]here is a problem with both groups accepting a child from such a marriage.” Ample scholarship has been devoted to the various social and legal problems that confronted mixed-race children. These problems included the illegitimate status of children whose parents were legally prohibited from marrying.

The federal regulation of interracial marriage similarly led to a generation of out-of-wedlock children in Japan, who were referred to as “GI babies,” “Occupation babies,” or “half-half babies.” As already explained, many American soldiers were prohibited from marrying their Japanese girlfriends. Other couples chose to marry without the military’s approval. In both situations, the relationships lacked the official recognition of a valid marriage. As a result, children of these American-Japanese couples were considered illegitimate. To be sure, the precise numbers of illegitimate Occupation babies whose parents either unsuccessfully sought to marry or married without the official approval of the military are unknown. Indeed, one scholar noted that the U.S. military prohibited both military and Japanese officials from conducting a census of Occupation children…

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