Issue:  Vol. 48 / No. 12 / 22 March 2018

Online extra: Friends of the Court: Asian groups back gay marriage


Kevin Fong
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Amicus co-author and nationally recognized appellate lawyer, Kevin Fong, hopes that by reading the Asian Pacific American's amicus brief in support of the freedom to marry, the Court will "have a greater appreciation for what is at issue, by looking at the State's prior exclusionary marriage laws from the vantage point of a longer historical lens. Constitutional issues are much easier to see with 20/20 historical hindsight and perhaps the reaction we have today in examining how Asian Pacific Americans were previously restricted from the right to marry will allow the court to consider its role in protecting the fundamental Constitutional principles at stake as we again consider exclusionary marriage laws aimed at gays and lesbians today."

"Laws limiting the ability to marry can limit the growth of a community and impede integration into society" – APA amicus brief

In recognition of Freedom to Marry Week, Marriage Equality USA (MEUSA) is featuring the Asian Pacific Americans' amicus brief filed by several Asian American Bar Associations throughout California and over 60 Asian Pacific American civil rights organizations; including the Japanese American Citizens League, National Korean American Service and Education Consortium, and the Asian American Legal Defense and Education Fund.

MEUSA is partnering with the Bay Area Reporter to highlight each of the 30 amicus "friend of the court" briefs filed with the California Supreme Court by hundreds of supportive organizations, professional associations, and religious institutions in favor of the freedom to marry.

The brief begins by saying, "As Asian Pacific American organizations, Amici are familiar with the history of discrimination, especially California's history of exclusionary efforts targeted at Asian immigrants which made it difficult to marry, establish families, have children, build communities and integrate into the larger American society. We see important parallels between the contemporary exclusion of lesbians and gay men from marriage in California."

"The Asian Pacific American organizations and Bar Associations involved felt it important to submit this amicus brief to unearth and bring to light some of the historical examples of California's exclusionary laws to remind the Court of the negative and real harms that these unfair laws have had on the impacted communities," said Fong. "The Asian Pacific American communities suffered from the legalization of popular prejudices of yesterday that can clearly be seen as Constitutionally unconscionable today. The Court must ensure that popular prejudice does not cloud Constitutional principles that apply equally to all people. We hope the brief will help provide support for ensuring that it is the American tradition of inclusion and rightly past legal wrongs that prevails in this case."

"Marriage is an important necessary step for an excluded group to integrate fully into society and such integration is essential for an excluded group to achieve security within the larger society," added Fong.

"For both groups, different treatment in law has perpetuated social perceptions of difference ... government policies that mark the group as different and less worthy of marriage give tacit approval to other forms of public and private discrimination." – APA amicus brief

The brief argues that marriage, like education, is a fundamental interest and subject to strict scrutiny by the Court because of its important role in fostering formation of families and integrating the family into society, as illustrated by the experience of Asian Americans in California.

Chinese Exclusion Acts were passed by the California Legislature to affect virtually every aspect of life including immigration, naturalization, taxation, employment and education. These laws were not repealed until 1943 for the Chinese community, 1946 for the Filipino and South Asian (Indian) community and 1952 for the Japanese and Korean communities.

In 1880, the California Legislature enacted 'anti-miscegenation' laws, which prohibited certain racial categories from marrying "white persons." Such marriages were considered "illegal and void."

In fact, white American women were stripped of their U.S. citizenship for marrying a "foreigner" until that law was repealed in 1931 (so white Americans could marry white foreigners – as anti-miscegenation laws stayed in place in California until 1948.)

As a result, because Chinese immigrant men were restricted from marrying white American women and Chinese women were effectively denied the right to emigrate from China, Chinese men were faced with the choice of abandoning the U.S. or living alone in bachelor societies without the hope of ever having families. Thus, restrictions of marriage laws were an integral part of excluding, isolating and limiting the participation of Chinese Americans in California's early prosperity.

For Japanese Americans, immigration was restricted in stages such that men had more opportunity to bring Japanese brides to America. However, as Japanese Americans made inroads into farming and began developing some economic power, they were seen as a threat and, in addition to the existing anti-miscegenation laws, further legislation was passed to restrict Japanese Americans from being able to prosper and integrate into society.

This legal framework created an environment of social isolation and lack of integration where fear and intolerance flourished and which permitted the internment of Japanese Americans in World War II.

Filipino Americans were initially not subject to Asian exclusion actions because the U.S. annexed the Philippines and considered residents "U.S. nationals." When a Filipino male and white female appealed after they were denied a marriage license in Los Angeles, the California Supreme Court, rather than striking down the then-popular anti-miscegenation laws, instead narrowly ruled they could marry because Filipinos were part of the Malay and not Mongolian race and therefore not one of the categories precluded from marrying a white person.

Following this ruling, the California Legislature immediately passed a law adding Malay to the list and invalidated their marriage and all marriages between Filipino and white Californians in 1933.

Punjabi Indian men were also precluded from marrying white women under the anti-miscegenation statute and immigration restrictions on Punjabi Indian women were severe. The laws did not preclude these men from marrying Mexican American women, and therefore, there became a sizable community of mixed-ethnic Punjabi-Mexican Californian families illustrating how the state's restrictive marriage laws have played a role in the particular multi-ethnic composition of many Californians alive today.

"At the core, this discrimination was motivated by stereotypes about each group and the putative threat each group posed to whites in California. For example, some argued that American institutions and culture would be overwhelmed by the habits of people thought to be sexually promiscuous, perverse, lascivious and immoral. These stereotypes led to the enactment of laws that not only impeded full integration into society, but promoted segregated communities and institutions." – APA amicus brief

When the parents of Stuart Gaffney, a marriage plaintiff and Marriage Equality USA Asian Pacific Islander (API) Outreach Director, met at the University of California at Berkeley and married in 1952, (just five years after the California Supreme Court had struck down California's own anti-miscegenation law) their marriage was still not valid in many states.

In fact, when they moved to Missouri and started looking for a home, they learned that their marriage was null and void under Missouri law. One generation later, Gaffney and his partner of more than 20 years, John Lewis, are challenging the current exclusionary law prohibiting them from marrying.

"We have shared our family's story to raise awareness of our state's history of exclusion and to encourage our society to continue to challenge unjust laws and embrace the American tradition of fairness and equality for all," said Gaffney.

"The exclusion of gay couples from marriage pushes them outside of the common framework and vocabulary of family and civic life; it forces them to be outsiders." – APA amicus brief

Domestic partnerships cannot serve the same function of integrating couples into society and cannot justify the denial of lesbian and gay people's fundamental interest in marriage. As Helen Zia recalled in a declaration filed with the court, becoming registered domestic partners with her life-partner, Lia Shigemura, was not meaningful to them or their families.

"To both of our families, my Chinese American family and Lia's Japanese American family, the bonds of family are critically important� [Marriage] is a bonding of two families, the family of each person in the couple. My mother's inability to say that we are married prevents her from sharing with many of her friends the pride and joy and sense of connection that she would have if our union were recognized as a marriage by society," stated Zia in the declaration.

The brief concludes by noting that by "taking a lesson from the Asian American history, there is ample reason to believe that allowing lesbian and gay couples to enjoy their fundamental interest in marriage will permit normalization and incorporation of these couples within the fabric of California society and support stability of the family unit."

The complete amicus brief can be found online; PDF

Kevin Fong is leader of Pillsbury, Winthrop, Shaw Pittman's Appellate practice team, ranked in 2007 Chambers USA as one of the leading national appellate practices. He has argued and briefed numerous cases before state and federal appellate courts, including appearances in 80 published decisions. He is one of the appellate lawyers in California recently selected by his peers for inclusion in the Best Lawyers in America for 2007 and 2008.

Fong recently completed a three-year appointment by the American Bar Association to its Commission on Racial and Ethnic Diversity in the Profession. He also has served on the board of directors of Lawyers for One America, a national collaboration of organizations working on diversity and pro bono issues in the legal profession. In 2000, Lawyers for One America produced its Report to the President of the United States on the Status of People of Color and Pro Bono Services in the Legal Profession.

Fong was the honoree at the 2006 annual dinner of the Asian Law Caucus, which honored Fong for his leadership in promoting diversity in the legal profession. Fong has served as president of the Asian Pacific Bar of California and as president of the Asian American Bar Association of the Greater Bay Area.

Asian Pacific Islander Legal Outreach (formerly Nihonmachi Legal Outreach) is a community-based, social justice organization serving the Asian and Pacific Islander communities of the Greater Bay Area. With a staff of 20 in offices in San Francisco and Oakland, it provides legal, social, and educational services in more than a dozen languages and dialects including Cantonese, Chiu-Chow, Hindi, Ilocano, Japanese, Korean, Lao, Mandarin, Spanish, Tagalog, Taiwanese, Urdu, and Vietnamese.

Founded in 1975, the group's mission is to promote culturally and linguistically appropriate services for the most marginalized segments of the API community. Its work is currently focused on domestic violence, violence against women, immigration and immigrant rights, senior law and elder abuse, human trafficking, public benefits, and social justice issues. For more information, go to

The Asian Pacific American Legal Center of Southern California (APALC) is the nation's largest legal organization serving the Asian and Pacific Islander (API) communities. Founded in 1983, APALC is a unique organization that combines traditional legal services with civil rights advocacy and leadership development.

The mission of APALC is to advocate for civil rights, provide legal services and education and build coalitions to positively influence and impact Asian Pacific Americans and to create a more equitable and harmonious society. For more information, go to

Marriage Equality USA (MEUSA) is a national, non-profit organization created to secure legally recognized civil marriage equality without regard to gender identity or sexual orientation at the federal and state level. For more information, go to

Previous articles:

Online series looks at legal arguments in marriage case

Friends of the Court: Briefs by black groups cite equality

Friends of the Court: Cities, counties push for change

Friends of the Court: Lawmakers' goal is equality

Friends of the Court: Decisions are not popularity contests

Friends of the Court: DPs fall short on privacy

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