Tuesday, September 22, 2020


Article Index

A. History of Marriage and U.S. Citizenship

The emphasis on marriage in immigration, naturalization, and citizenship has generally had a greater impact on the status of women than that of men. In the nineteenth century, under the doctrine of coverture, a married woman's identity was merged with that of her husband. In such a relationship, the husband was the primary decision maker and possessor of rights. Following the doctrine of coverture, women's citizenship in the United States was ultimately determined by their husbands' citizenship.

At the founding of the American nation, women's nationality was not affected by their marriages. American women who married noncitizens did not lose their U.S. citizenship as a result of the marriage. A Supreme Court decision in 1830 confirmed that marriage to a foreigner did not negate an American woman's citizenship. Similarly, foreign women's citizenship was not affected by their marriages to American citizens. This changed in 1855 when Congress granted American citizenship to any alien woman who married a U.S. citizen male. The Congressional debates about the 1855 Act included a remark that, by the act of marriage itself the political character of the wife shall at once conform to the political character of the husband. A woman's marriage to an American became an act of political consent to the U.S. nation state. However, the privilege of citizenship through marriage was only granted to women who could naturalize under existing laws. The Naturalization Act of 1790 limited naturalization to free white persons. As a result of the Naturalization Act, until 1870 only free white women could attain citizenship when they married American citizens. Other foreign women, such as Chinese, could not attain citizenship through their marriage to American citizens.

While the 1855 Act defined which women could join the American nation, the 1907 Expatriation Act clearly delineated which women were not welcome as American citizens and it marked a shift in the relationship between American women's citizenship and marriage. The Expatriation Act provided that any female U.S. citizen who married a foreigner was stripped of her U.S. citizenship. This proved to be a significant problem for women who became stateless when their husband's country of citizenship did not automatically grant the woman citizenship as a result of her marriage, or when they married men who had lost their citizenship. The Expatriation Act especially affected U.S.-born Asian women who married noncitizens, because they lost their citizenship and could not regain American citizenship through naturalization even after their marriage ended because they became aliens ineligible to citizenship under the Naturalization Act. In some cases, this forced Asian women to choose between American citizenship and marriage.

The reasons given for the Expatriation Act included the danger posed by dual nationality and the goal of bringing American law in line with that of other countries. The U.S. Supreme Court opined that marriages between American women and foreigners might bring the government into embarrassments and, it may be, into controversies. However, the provision seems harshly punitive and specifically designed to punish American women by stripping them of their citizenship if they married foreigners. One member of Congress charged that women who married foreign dukes and counts . . . when there are enough Americans for them to select from had only themselves to blame for their loss of citizenship. Because the Expatriation Act punished American women who married foreign men, the Act can be compared to state antimiscegenation laws, which prevented individuals from marrying outside their own race. Through the Expatriation Act, Congress was effectively stating its disapproval of marriages between American women and foreign men.

An important change relating to women's citizenship came with the 1922 Cable Act, which partially repealed the Expatriation Act. The Cable Act made some women's citizenship independent of their husbands' status. No female citizen could lose her U.S. citizenship as a result of her marriage to an alien as long as her foreign husband was racially eligible to become a citizen. To correct the effects of the Expatriation Act, the Cable Act also provided that women who had lost their American citizenship as a result of their marriage to a noncitizen prior to 1922 could naturalize if their husbands were racially eligible for citizenship and if they themselves were eligible for citizenship. However, this only ended expatriation of white or black women married to white or black men.

While the Cable Act corrected some wrongs of the Expatriation Act, the Cable Act did not help any women married to aliens who were ineligible to citizenship. Any such woman would cease to be an American citizen upon marriage to an alien, and she could not regain her citizenship without renouncing her marriage. This provision mostly affected U.S.-born Asian women who married foreign-born Asian men, although some white women also married foreign-born Asian men and lost their U.S. citizenship. For example, a congressional delegate from Hawaii testified that about 80,000 Asian women would be unable to regain American citizenship after their expatriation as a result of their marriages to Asian men. In addition, it was presumed that women who lived abroad during their marriage had renounced their citizenship.

The Cable Act also affected foreign women's citizenship. As a result of the Act, no alien woman could automatically acquire citizenship simply by marriage to an American or by the naturalization of her husband. The Cable Act provided that the marriage gave these women the right to petition for naturalization, but even if they acquired U.S. citizenship by marriage, they lost their citizenship if they divorced or in the event that their husbands died. Alien women ineligible to citizenship still could not gain U.S. citizenship, even if they married a U.S. citizen. Thus, these foreign wives of American citizens were still subject to deportation and exclusion under immigration laws.

As a result of lobbying efforts by women's groups and Asian American organizations, the Cable Act was amended. The 1930 amendment simplified the naturalization process for women who were eligible to citizenship but had lost their citizenship as a result of their marriage under the earlier version of the Cable Act.

Another amendment to the Cable Act in 1931 allowed women who had lost their American citizenship as a result of their marriage to a foreigner ineligible for citizenship to regain it through naturalization. The 1931 amendment further provided that any woman who was born a U.S. citizen, but had lost citizenship because of her marriage, would not be disallowed to naturalize because of her race, even if she otherwise would be racially barred from naturalization. This was the first action by Congress since 1870 that repealed a racial barrier to citizenship. Racial barriers were further rescinded through the 1932 amendment to the Cable Act, which extended birthright citizenship to women born in Hawaii before 1900, regardless of their race.

Further allowing marriage to affect immigration and citizenship, the War Brides Act was enacted in 1945 to expedite the admission of alien spouses and minor children of U.S. Armed Forces into the United States by providing them nonquota immigrant status. At the outset, Asian women could not take advantage of the War Brides Act, because the 1924 Immigration Act categorized them as racially ineligible for both immigration and naturalization. A 1947 amendment to the War Brides Act allowed Asian wives of U.S. servicemen to immigrate. Many of the first women to take advantage of the 1947 amendment were Chinese women married to Chinese American servicemen. Japanese and Korean women also immigrated to the United States as a result of the military occupation of Japan and the Korean War, which resulted in many marriages to American servicemen.

These laws illustrate that since the mid-nineteenth century women's citizenship has been inextricably tied to marriage. For American women, the choice of whom to marry affected their citizenship status. Women were penalized for marrying foreign men through the loss of their birthright citizenship. For noncitizen women, marriage afforded them an opportunity to gain citizenship, although race-based restrictions still affected the ability of some women to naturalize. The same military occupations and wars that highlighted and reinforced the perception of the sexualized and submissive Asian woman also ultimately opened the channels for Asian wives of U.S. servicemen to immigrate and gain citizenship.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law