Emil Guillermo: Race Mixers Unite--Remember the Lovings, the Naims, and all the Asian bachelors past

June 12, 2015 5:31 PM

It's Loving Day, folks, and we might as well make it a whole darn weekend of happy mixing, because Asian Americans really had more of a role in the legendary Loving case than you think.

It wasn't just a white/black thing, as I'll explain in a bit. 

For those of you stuck in a Kim and Kanye World, I know, it's hard to imagine a time when people didn't just hook up when they felt like hooking up. 

But it's true. The hooks were different then and could get you jailed.

Back in the day, anti-intermarriage laws were present throughout the U.S. 

Whites couldn't marry blacks. And Filipinos or Asians. With Whites? Don't even think about it.

Sure, taboos tend to make things spicier, but oh so illegal.

And while laws were passed in 1948 to allow for race mixing in California and some other states, the anti-miscegenation laws didn't really come off the books until Loving v. Virginia

That's the case in which Richard Loving, a white male from Virginia, married Mildred Jeter, an African American female, in Washington, D.C. in 1958. When they later returned to Virginia, they were promptly arrested.
 lovings.jpgThey pleaded guilty and fought all the way to the Supreme Court for their right to marry.

On June 12, 1967, the Supreme Court unanimously ruled that the ban on interracial marriage was a violation of the Fourteenth Amendment.

"It was the only law that made it concrete for the nation," said Phil Hirschkop, the lead lawyer who argued the case before the Supreme Court. "California opinions applied just to California. The ban on intermarriage was the law in 17 states (mostly in the South); Maryland repealed its own law. So Loving struck down those laws, but also hundreds of others. Many states had multiple laws, not just banning marriage from races or whatever it was defined by, but laws against going to another state to avoid the marriage laws, passing property. There was a whole host of laws, we counted 167 laws that were voided by the Loving opinion itself." 

hirschkop.jpgHIrschkop, who has practiced law for more than 50 years, said the Loving case was simple, as there were no trials or depositions. But the impact of the case was huge.

"Loving most importantly had two major legal implications," Hirschkop said in a phone interview. "Of course, it recognized a right to marry as a fundamental right. There are two kinds of rights, rights made by laws or constitution, such as freedom of religion and speech. But then there are those inalienable rights that are not created by constitution, but are protected by the constitution, such as the right of privacy. When you get to Roe v. Wade, the right of a woman's sanctity of her body, that's not a right enunciated in the constitution anywhere, but it is, in fact, protected. And in the same way, so is marriage. The Court recognized a whole new area of rights that you're born with, and by virtue of citizenship. That's the first big thing in Loving."

Hirschkop continued: "The second big thing is that it recognized where the state uses race as a basis of a statutory proscription, the burden is on the state to show a compelling state interest. Normally, if you bring a case attacking a state statute, you have a heavy burden to show why the statute is unconstitutional. But where the statute has a class-based animus, the burden shifts to the state. It makes it much easier to contest the validity of such laws."

LovingvVirginia.jpg
One of the little known facts of the Loving argument is how Asian Americans informed Hirschkop.

It involves the case of Naim v. Naim, in which a Chinese sailor, Han Say Naim, met his wife Ruby, a white woman living in Virginia, and then went to North Carolina to be married on June 26, 1952, simply because of Virginia's ban on all interracial marriages.

North Carolina didn't ban white and Asian marriages. 

They returned to Virginia and lived as husband and wife for a year. But then Ruby Naim filed for an annulment based on the Virginia Racial Integrity Act of 1924.

Her husband, Han Say Naim, argued for the validity of his marriage, reportedly concerned for his immigration status. His lawyer, David Carliner, wanted to challenge the Virginia law. The case went all the way to the Virginia Supreme Court, which ultimately backed a circuit court decision and sided with Mrs. Naim. 

Here are the concluding graphs of the Virginia opinion:

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. 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. Both sacred and secular history teach that nations and races have better advanced in human progress when they cultivated their own distinctive characteristics and culture and developed their own peculiar genius. 

Regulation of the marriage relation is, we think, distinctly one of the rights guaranteed to the States and safeguarded by that bastion of States' rights, somewhat battered perhaps but still a sturdy fortress in our fundamental law, the tenth section of the Bill of Rights, which declares: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

The decree appealed from is affirmed.

With that, from June 13, 1955, there would be no question on Virginia's ban on white and Asian marriages.

Naim took the case to the Supreme Court, but his timing was wrong. It was one hot potato at a time. The Court had just ruled on the monumental Brown v. Board of Education case.

But in honor of the Naim case, Hirschkop said Naim's lawyer, David Carliner, was included in the Loving court papers.

"Naim was a terrible opinion, because it talked about "bastardization of the races," the same ugly reasoning, same ugly language that the court applied to black/white was definitely applied to Asian Americans," Hirschkop said.

Hirschkop mentioned one other situation as being integral to the Loving argument--the fervor of the 1920s and 1930s that resulted in anti-miscegenation laws in California left the largely male Filipino population, brought in as laborers, in a sexual limbo.

"Going back to '20s, that was a big linchpin of our Loving argument," Hirschkop said. "The 1920s were one of the worst periods of American history. We came out of the First World War into the Great Depression, and that's when a lot of these miscegenation laws were written in the United States. And prejudice was at its worst in the history of this country."

"It was just a bitter time in the country," Hirschkop continued. "When the Klan was at the height of its power in the '20s, Virginia re-did its law, and at that time, many other states re-did their anti-miscegenation laws. They did other laws to oppress everything but the white race, as well as maintain the supremacy of the white race."

Hirschkop also pointed to one irony that stays with him to this day. 

"We came out of World War II and Asian Americans were in a horrible situation," Hirschkop said. "We locked out the Nisei. Everyone west of Denver was locked in a concentration camp. And one odd contradiction. . . the man who wrote the Loving opinion, Chief Justice Earl Warren, was attorney general of California and signed the document that locked up the Japanese Americans in California." Indeed, the JACL was well represented with attorney William Marutani arguing in the Supreme Court as an amicus in the Loving case.

As a tribute to the importance of Loving, the case is often used to help fortify arguments in favor of same-sex marriages. And just this week, the Pew Research Center released its report "Multiracial in America," calling multiracial Americans "the cutting edge of social and demographic change in the U.S.--young, proud, tolerant and growing at a rate three times as fast as the population as a whole." (With three half-Asian children myself, I'll comment on that more in the future.)

For now, it's pretty daunting to realize that none of it could have happened without Loving.

When you think of all the hate we've all had to overcome, just to get to first base, we should pause and remember Loving Day on June 12th, and the anniversary of the Naim decision on June 13th.  

It's worth an extended weekend to celebrate and affirm our right to love and marry across racial lines. 

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Emil Guillermo is an independent journalist/commentator. 
Updates at www.amok.com. Follow Emil on Twitter, and like his Facebook page.
The views expressed in this blog do not necessarily represent AALDEF's views or policies.




Posted by:Emil Guillermo

The views expressed in this blog do not necessarily represent the views or policies of AALDEF.

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