Chinese and Virginia’s (Defunct) Interracial Marriage Ban

Recently, I started wondering whether marriage between a white person and a person of Chinese ancestry would have been allowed under Virginia’s old, now-repealed[1] ban on interracial marriages.  The answer ended up being more complicated than I expected.  Strangely enough, while the most recent version of this ban did indeed prohibit Chinese-white marriages, prior versions of that law likely permitted such unions.

The last version[2] of Virginia’s racial intermarriage law – the version eventually deemed unconstitutional by the U.S. Supreme Court in Loving v. Virginia[3] – both criminalized and invalidated marriages between whites and Chinese.  Enacted in 1924,[4] this statute made it “unlawful for any white person in this State to marry any save a white person,” with “white person” being defined as any person who “has no trace whatever of any blood other than Caucasian . . . .”[5]  The law also explicitly distinguished between the “Caucasian” and “Mongolian” races.[6]  This distinction was particularly significant because, at that time, both scholars and court decisions classified Chinese as members of the latter race.[7]  Thus, in 1955, Virginia’s Supreme Court unsurprisingly held that this law voided a marriage between a Chinese husband and a white wife.[8]

Before 1924, however, Virginia’s interracial marriage ban was not quite so broad.  On the contrary, prior versions of that law only prohibited marriages between whites and “colored persons,” with the latter phrase meaning persons with varying proportions of “negro blood.”[9]  Many of the same precedents that classified Chinese as “Mongolian” also distinguished between that race and the “Negro” race.[10]  The same was true of contemporaneous scholarship.[11]  This strongly implies that Virginia’s pre-1924 interracial marriage ban only prohibited black-white marriages, and that it did not extend to Chinese-white unions.[12]

This omission might seem odd, but it was hardly unprecedented.  In the early twentieth century, something similar happened in American naturalization law, which, at the time, only allowed aliens who were either “white persons” or “of African ancestry” to acquire U.S. citizenship.[13]  Many courts, when excluding Chinese,[14] Japanese,[15] Burmese,[16] Hawaiians,[17] Koreans,[18] and American Indians[19] from citizenship, interpreted “white” to mean “Caucasian.”  Based on these precedents, other courts subsequently held that Armenians,[20] Syrians,[21] and Asian Indians[22] – groups classified as “Caucasian” under then-predominant views regarding “race science” – were “white persons” and thus eligible for naturalization.  (Only in 1923 did the U.S. Supreme Court close this loophole.[23])  Given this history, it is not surprising that Virginia’s statutory language, combined with case law and scholarship regarding racial classifications, probably opened a similar loophole allowing Chinese-white marriages.

Some might dispute this conclusion, by suggesting that “colored persons” in Virginia’s pre-1924 interracial marriage statutes encompasses other non-white persons besides blacks.  As noted above, however, these statutes also specifically defined “colored person” to mean persons with “negro blood.”  Moreover, the vast majority of pre-1924 court decisions either read “colored person” to mean blacks, or distinguished between “colored persons” and Chinese.[24]  Hence, both the statutory definition and judicial usage strongly suggest that the mention of “colored person” in Virginia’s interracial marriage laws did not extend those laws to Chinese-white marriages.

It therefore appears that, for most of Virginia history, the answer to my original query was “Yes,” except between 1924 and 1967, when the opposite was true.

[1] See Act of Apr. 2, 1968, ch. 318, § 2, 1968 Va. Acts 428, 430.

[2] Va. Code Ann. §§ 20-50 to -60 (Repl. Vol. 1960) (repealed 1968).

[3] 388 U.S. 1 (1967).

[4] Act of Mar. 20, 1924, ch. 371, 1924 Va. Acts 534, 534-35.

[5] Va. Code Ann. § 20-54 (Repl. Vol. 1960) (repealed 1968).  An exception in this provision allowed a whites to marry any “person with no other admixture of blood than white and American Indian,” so long as any such individual had “one-sixteenth or less of the blood of the American Indian and ha[d] no other non-Caucasic blood . . . .”  Id.

[6] Id. § 20-50.

[7] See In re Halladjian 174 F. 834, 844 (C.C.D. Mass. 1909) (“Only after the feeling concerning the Chinese had led to a discrimination between them and other aliens was their naturalization refused . . . . the distinction made was between Caucasian and Mongolian.”); In re Saito, 62 F. 126, 126 (C.C.D. Mass. 1894) (“the Chinese, belong to the Mongolian race,”); In re Ah Yup, 1 F. Cas. 223, 223-24 (C.C.D. Cal. 1878) (No. 104) (making such a distinction); In re Knight, 171 F. 299, 300 (E.D.N.Y. 1909) (“A person of the Mongolian race, either Chinese or Japanese, cannot be naturalized”); In re Gee Hop, 71 F. 274, 275 (N.D. Cal. 1895) (“Mongolians, or persons belonging to the Chinese race, are not included in this act.”); infra note 9.  I’m not necessarily saying or implying that these racial categories were morally, ethically, or scientifically proper, only that such categories were, in fact, accepted in both law and scholarship when Virginia’s racial intermarriage laws were in force.

[8] See Naim v. Naim, 87 S.E.2d 749, 750, 756 (Va. 1955).

[9] See Va. Code Ann. § 67 (1919) (“Every person having one-sixteenth or more of negro blood shall be deemed a colored person,”); id. § 4540 (“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 as guilty, and be punished, as if the marriage had been in this State.”); id. § 4546 (“If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be confined in the penitentiary not less than two nor more than five years.”); id. § 4547 (“If any person perform the ceremony of marriage between a white person and a colored person, he shall forfeit two hundred dollars, of which the informer shall have one-half.”); id. § 5087 (“All marriages between a white person and a colored person . . . shall be absolutely void, without any decree of divorce, or other legal process.”).  Virginia’s 1887 and 1849 codes contained similar provisions, but the former defined “colored person” as “Every person having one-fourth or more of negro blood,” and the latter used the words “negro” and “mulatto” instead of “colored person.”  See Va. Code Ann. §§ 49, 2252, 2253, 3788, 3789 (1887); Va. Code, ch. 103, § 3 (1849); id. ch. 109, § 1; id. ch. 196, §§ 8-9.  The interracial marriage provisions of Virginia’s 1819 code, which codified statutory language enacted in 1792, likewise applied only to marriage between a “white man or woman” and “a negro or mulatto man or woman,” but interestingly punished only the white party to such unions.  See Va. Rev. Code, ch. 106, §§ 22-23 (1819); id. ch. 111, § 11; Act of Dec. 22, 1792, ch. 42, §§ 17-18, 1 Va. Stat. 130, 134-35 (Shepherd 1835); Act of Dec. 17, 1792, ch. 41, § 10, 1 Va. Stat. 122, 123 (Shepherd 1835).  See also Walter Wadlington, The Loving Case: Virginia’s Anti-Miscegenation Statute in Historical Perspective, 52 Va. L. Rev. 1189, 1193-99 (1966) (discussing the history of Virginia’s pre-1924 interracial marriage laws).

[10] See In re Halladjian 174 F. 834, 837, 844 (C.C.D. Mass. 1909) (noting that “we speak of the Anglo-Saxon race, the Teutonic, the Celtic, the Slavonic, the Caucasian, the Mongolian, the Hebrew, the Negro,” and that Chinese were denied naturalization because, in case law, “the distinction made was between Caucasian and Mongolian.”); In re Saito, 62 F. 126, 126 (C.C.D. Mass. 1894) (distinguishing between “the Chinese, [who] belong to the Mongolian race,” and “the Negro or black race,”); In re Ah Yup, 1 F. Cas. 223, 223-24 (C.C.D. Cal. 1878) (No. 104) (making such a distinction).  See also In re Najour, 174 F. 735, 735 (C.C.N.D. Ga. 1909) (distinguishing between the “Negro or black,” and the “Mongol or yellow”); In re Charr, 273 F. 207, 209-10 (W.D. Mo. 1921) (“Generally speaking, ‘free white persons’ includes members of the white or Caucasian race as distinct from the black, red, yellow, and brown races”); In re Ellis, 179 F. 1002, 1003 (D. Or. 1910) (“the word ‘white’ was employed to distinguish between the white, the African, and the Mongolian races.”); In re Nian, 21 P. 993, 993 (Utah 1889) (distinguishing between “Negroes, [and] Mongols”); In re Yamashita, 70 P. 482, 483 (Wash. 1902) (similar).

[11] See U.S. Immigration Comm’n, Dictionary of Races or Peoples, S. Doc. No. 61-662, at 40, 100-01 (3d Sess. 1911) (classifying “Chinese” as “one of the Sinitic groups of the Mongolian or Asiatic race,” and distinguishing “the Mongolian race” from “the Negro race”); A.H. Keane, The World’s Peoples 13, 18, 21 (1908) (classifying “Chinese” as part of the “Mongolic or Yellow Division,” not the “Negro or Black Division”); 6 The American Cyclopedia: A Popular Dictionary of General Knowledge 756 (George Ripley & Charles A. Dana ed., New York, D. Appleton & Co., 2d ed. 1879) (classifying “Indo-Chinese” as “Mongolians,” as distinguished from “Negroes”).

[12] See Richard B. Sherman, “The Last Stand”: The Fight for Racial Integrity in Virginia in the 1920s, 54 J. S. Hist. 69, 79 (1988) (“The new [1924] act . . . banned for the first time in Virginia history the marriage of orientals or other nonwhites to whites.”); Wadlington, supra note 9, at 1201 (noting that, with the 1924 act, “for the first time following statehood the marriage of whites with Asiatics . . . was prohibited.”).

[13] U.S. Rev. Stat. § 2169 (1878).  For the fascinating story of the “racial prerequisite” case law discussed in this paragraph, see Ian Haney Lopez, White by Law: The Legal Construction of Race 35-65 (rev. ed. 2006) (1996).

[14] See In re Ah Yup, 1 F. Cas. 223, 223 (C.C. D.Ca. 1878) (No. 104) (“As ordinarily used everywhere in the United States, one would scarcely fail to understand that the party employing the words “white person” would intend a person of the Caucasian race.”)

[15] See Bessho v. United States, 178 F. 245, 248 (4th Cir. 1910) (“[T]he intention was to exclude from naturalization all aliens except those of the Caucasian and the African races.”); In re Saito, 62 F. 126, 126 (C.C.D. Mass. 1894) (“[W]hen congress, in designating the class of persons who could be naturalized, inserted the qualifying word “white,” it intended to exclude from the privilege of citizenship all alien races except the Caucasian.”); In re Yamashita, 70 P. 482, 483 (Wash. 1902) (“When the naturalization law was enacted the word “white” applied to race, commonly referred to the Caucasian race.”);

[16] See In re Po, 7 Misc. 471, 473 (N.Y. City Ct. 1894) (“the word “white person,” as used in the naturalization laws, means a person of the Caucasian race”);

[17] See In re Nian, 21 P. 993, 994 (Utah 1889) (“the law authorizes the naturalization of aliens of the Caucasian or white races and of the African races only, and all other races, among which are the Hawaiians, are excluded.”).

[18] See In re Charr, 273 F. 207, 209-10 (W.D. Mo. 1921) (“Generally speaking, “free white persons” includes members of the white or Caucasian race as distinct from the black, red, yellow, and brown races”);

[19] See In re Camille, 6 F. 256, 257 (C.C.D. Or. 1880) (“the words “white person,” as used in the naturalization laws, mean a person of the Caucasian race,”);

[20] See In re Halladjian 174 F. 834, 840 (C.C.D. Mass. 1909) (“Armenians have always been classified in the white or Caucasian race . . . . a casual examination of books on ethnology, standing together on the shelves of a large library, old and new, weightly and unimportant, shows complete agreement in the proposition that Armenians are to be classed as white or Caucasian,”)

[21] See Dow v. United States, 226 F. 145, 146-47 (4th Cir. 1915) (referring to “the white or Caucasian race,” and noting that because “the modern Syrians . . . . belong to the Semitic branch of the Caucasian race,” “Syrians, were generally classed as white people.”); In re Mudarri, 176 F. 465, 466 (C.C.D. Mass. 1910) (“Syrians are to be classed as of the Caucasian or white race.”); In re Ellis, 179 F. 1002, 1003-04 (D. Or. 1910) (“What is conceded by the government, ‘that the applicant is a member of what is known as the white or Caucasian race,’ brings the case at bar exactly within the authority.”); In re Najour, 174 F. 735, 735 (C.C. N.D. Ga. 1909) (“[F]air or dark complexion should not be allowed to control, provided the person seeking naturalization comes within the classification of the white or Caucasian race, and I consider the Syrians as belonging to what we recognize, and what the world recognizes, as the white race.”)

[22] See United States v. Balsara, 180 F. 694, 695-96 (2d Cir. 1910) (holding that “free white persons” referred to “members of the white or Caucasian race only,” and that “the Parsees do belong to the white race”); In re Singh, 257 F. 209, 212 (S.D. Cal. 1919) (“any members of the white or Caucasian race, possessing the proper qualifications in every other respect, are entitled to admission under the general wording of the statute respecting ‘all free white persons.’”); In re Mozumdar, 207 F. 115, 117 (E.D. Wash. 1913) (“it is now settled, by the great weight of authority, at least, that it was the intention of Congress to confer the privilege of naturalization upon members of the Caucasian race only. . . . It is likewise true that certain of the natives of India belong to that race,”)

[23] See United States v. Thind, 261 U.S. 204, 213 (1923).

[24] See Plessy v. Ferguson, 163 U.S. 537, 561 (1896) (Harlan, J., dissenting) (“by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana . . . are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. It is scarcely just to say that a colored citizen should not object to occupying a public coach assigned to his own race.”); In re Look Tin Sing, 21 F. 905, 909 (C.C. D.Cal. 1884) (“When [the Fourteenth Amendment] was adopted, the naturalization laws of the United States excluded colored persons from becoming citizens, and the freedmen and their descendants, not being aliens, were without the purview of those laws.”); People v. Washington, 36 Cal. 658, 684 (1869) (Crockett, J., dissenting) (noting the “proposition” that “because a Chinaman is prohibited by law from testifying against a white person, therefore he shall not testify against a colored person who never was a slave;”); Jones v. Kehrlein, 194 P. 55, 56 (Cal. Ct. App. 1920) (“Jones was . . . ordered into the section set apart for colored people, Japanese, Chinese, and Mexicans, solely because he was a negro.”); Wall v. Oyster, 36 App. D.C. 50, 55 (1910) (“That the common use of the word [i.e., “colored”] throughout the United States is in nowise significant of mere complexion is quite definitely established by considering the universal habit of the people in their unalterable failure to apply it to the Indian, who is red, the Mongolian, who is yellow, or to the Malay, who is brown; its application to one of these unfair complexions is not any time to be heard; to those of negro blood alone it is ever found to be suited”); White v. Clements, 39 Ga. 232, 278 (1869) (Warner, J., dissenting) (referring to “any other class of persons who might thereafter be made citizens of the State, such as Chinese, Africans, or persons of color.”); State v. Treadaway, 52 So. 500, 501-08 (La. 1910) (noting that dictionaries, statutes, and case law all used “colored” to mean persons having “negro blood”); Lee v. New Orleans Great N. R.R., 51 So. 182, 183 (La. 1910) (“The word ‘colored,’ as used in the statute, is a term specifically applied in the United States to negroes or persons having an admixture of negro blood. ”); Roberts v. City of Boston, 59 Mass. (5 Cush.) 198, 206 (1849) (referring to “colored persons, the descendants of Africans,”); People v. Dean, 14 Mich. 406, 408 (1866) (argument of counsel) (“[T]he words ‘white’ and ‘colored’ were invariably used . . . in contradistinction to each other; the former, in its use, having reference to the pure European race . . . and the latter to all who had more or less African or negro blood in their veins”); Morrow v. Dirlam, 30 Ohio Dec. 271, 277 (C.P. Richland 1919) (referring to “Colored people & Chinese”); Anderson v. Pantages Theatre Co., 194 P. 813, 814 (Wash. 1921) (“it was the policy and practice of the management of the theatre to refuse admission to box seats, seats in the loges, and seats on the ground floor of the theatre to all colored people, and to all orientals,”).  But see State v. Claiborne, 19 Tenn. (1 Meigs) 331, 337 (1838) (argument of counsel) (referring to “other free persons who are colored, such as the tawny Asiatic or copper-colored Indian.”); In re Halladjiian, 174 F. 834, 843 (C.C.D. Mass. 1909) (“In other instances “colored,” as opposed to “white,” was used to include Negroes, Chinese, Japanese, and Indians.”).

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