Illegitimate borders: jus sanguinis citizenship and the legal construction of family, race, and nation.

• Author: Collins, Kristin A.
• Position: III. The Guyer Rule in the Modern Era of Nationality Law B. The Guyer Rule at War: War Brides, War Babies, and "Bui Doi" through Conclusion, with footnotes, p. 2207-2235

2. The Guyer Rule at War: War Brides, War Babies, and "Bui Doi"

   The Nationality Act of 1940 was not a war measure in the traditional sense, as it was not drafted in anticipation of the United States's entry into World War II. (285) However, shortly after the statute's enactment, the wartime deployment of American soldiers to battlefields--both within and beyond "Christendom"-led to the births of inestimable numbers of foreign-born children to American fathers. In this Section, I demonstrate how the modernized Guyer rule-the default rule that nonmarital foreign-born children of American fathers were not citizens--operated in combination with the race-based citizenship laws and the marriage and fraternization policies of the United States military during World War II, the Korean War, and the Vietnam War. (286) Under the Nationality Act of 1940, state marriage laws were important in determining the legitimacy of the foreign-born child of an American father, and hence the child's citizenship status, as the statute directed that the laws of the father's "domicile" would be used to determine the child's legitimacy. (287) But for the men who were stationed abroad as soldiers, and the children they fathered while there, the military policies that governed the marital and sexual practices of soldiers were just as significant and, as I explain below, further amplified the impact of state law bans on interracial marriage. Even a brief analysis of the United States's welcoming treatment of children born to American soldiers and their European "war brides" during World War II--and its resistance to marriages between American soldiers and their Asian girlfriends during that war, the Korean War, and the Vietnam War--demonstrates an essential point: the limitations on father-child jus sanguinis citizenship for nonmarital children continued to be used to exclude nonwhite children from citizenship and thus served a racially nativist nation-building project.

   Take the much-celebrated European "war brides" and "war babies" of World War II. During and following World War II, the military often encouraged soldiers to wed their European girlfriends with whom they had fathered children, and Congress provided the soldiers' non-excludable war brides and children with special immigration status through the War Brides Acts. (288) Congress funded a massive initiative to bring the European war brides-and their many babies--"home" to the United States, (289) and the Red Cross established war brides' schools" to help ease these women's transition into American society and prepare them to raise a new generation of citizens. But, as Susan Zeiger has chronicled in great detail, neither the military nor Congress was welcoming to all overseas girlfriends, fiancees, and wives of American soldiers-or the children they fathered with those women. The War Elides Acts specifically excluded women who were "ineligible to citizenship" because of their race, and the promise of preferential immigration status was denied those women. (290)

   The racial prohibitions incorporated into the War Brides Acts meant not only that a soldier could not bring his racially excludable wife home, but also--pursuant to explicit military policy-that the soldier would not likely be given permission to marry his racially excludable girlfriend in the first place. (291) Starting in 1939, every member of the military stationed abroad was required to obtain permission from his superiors to marry. (292) The work of Nancy Ota and Rose Cuison Villazor shows that, as a general matter, permission to marry was to be given liberally, but official military policy counseled against giving permission in cases where the soldier sought to marry outside his race. (293) Because of racially restrictive immigration law and state law restrictions on interracial marriage, the military contended, marriage to a racially excludable woman was likely to fail because the soldier would be unable to take his bride home to the United States. (294) Given the Nationality Act's requirement that only legitimate or legitimated foreign-born children of American fathers were recognized as citizens-and that legitimation generally required marriage-the military's restrictions on interracial marriage amplified the reach of state laws banning interracial marriage. In turn, the military ban on interracial marriage had obvious implications for the many children born out of wedlock to American soldiers and Asian women: under the rules governing father-child citizenship transmission, they were excluded from citizenship.

   In 1947, Congress provided a brief amnesty from the racially restrictive policy on the immigration of Asian war brides that allowed them to enter the United States under the permissive terms of the War Brides Act if they were married within thirty days. (295) But the 1947 Act was a temporary concession and did not overcome the military's policy against interracial marriages between American soldiers and Asian women. (296) Moreover, the 1947 Act did not clarify the status of the many children born abroad to American soldiers and their Asian wives prior to marriage. In an urgent telegram sent to the Department of State several months after the 1947 Act was passed, the American Consul in Yokohama asked for guidance concerning the citizenship status of the [considerable numbers of children born to service personnel prior to marriage of American citizen husbands to Japanese wives." (297) Although the soldiers' "alien wives" were admissible under the 1947 Act, "apparently alien children ineligible [to] citizenship [are] not admissible under those acts," the consul explained, and it was "[t]hus essential [to] determine whether [a] child [was] legitimated by subsequent marriage and therefore [was an] American citizen prior to departure." (298)

   In a responding airgram, intended to help American officials in Japan with this process, Department of State officials noted the states in which legitimation was effected by the marriage of the parents, but cautioned that "certain States forbid marriage between certain races." (299) If the husband's home state would not recognize his marriage, the marriage could not provide the basis for a child's legitimation under the Nationality Act, which explicitly required that the child be legitimated under the laws of the father's domicile. (300) Moreover, when the temporary exemption from race-based exclusion laws expired, it left in place a military policy that effectively banned interracial marriage in many countries where American soldiers were stationed, which thwarted the marriage plans of many couples. The children born to such unions, along with the thousands of other children born out of wedlock to American soldiers and Asian women during World War II and its aftermath, were excluded from citizenship. (301)

   In 1952 Congress eliminated all explicit race-based exclusions from American nationality law, and thirteen years later, it removed all national origins quotas, thus lifting a significant barrier to the immigration of Asian wives of American servicemen. (302) In 1967 the Supreme Court declared unconstitutional all laws banning interracial marriage. (303) But the marriage and legitimation requirements in the jus sanguinis citizenship statute-by then recodified in the 1952 Immigration and Nationality Act (304)--continued to serve as a race-salient limitation on the recognition of American soldiers' foreign-born children as citizens. Soldiers' interracial marriages were no longer illegal (or presumed illegal) under state law, but military officials continued to discourage soldiers from marrying local women in many of the Asian countries where American troops were stationed. For example, as Zeiger demonstrates, during the Vietnam War the military "vigorously and systematically discouraged marriage for American service personnel in Vietnam, placing a wide array of bureaucratic and financial obstacles in front of marriage aspirants." (305) Instead, drawing on a set of conventions and practices that had emerged during the Korean War, the military encouraged nonmarital sexual liaisons between American soldiers and local women, including long-term "contract" arrangements. (306) The children born to such relationships were illegitimate and hence not American citizens. Unlike in World War II Europe, where military officials had frequently encouraged soldiers to marry their pregnant English girlfriends, no pressure was used to encourage American soldiers to marry the Vietnamese mothers of their children; no special ships were commissioned to bring the soldiers' new families "home," and no "war brides schools" were established to help these women adjust to American life-or to raise a new generation of citizens. (307)

   It is impossible to know how many children were born out of wedlock to American soldiers stationed in Asia or elsewhere during the late twentieth century. (308) It is also impossible, of course, to determine the extent to which legal and military policy barriers to marriage shaped the decisions of individual soldiers and the women with whom they had relationships. For example, despite these policies, many American soldiers did marry their Korean and Vietnamese girlfriends--and legitimized their children in so doing. (309) And even when a child was born, presumably many couples would have opted out of marriage regardless of the policies discouraging or prohibiting the solemnization of their relationships. (310)

   Nonetheless, the differences between the legitimacy and citizenship status of children fathered by American soldiers in England circa 1945, Japan circa 1947> and Vietnam circa 1968 lay not just in the private choices of individuals entangled by war, but also-and significantly-in the official race-based marriage and fraternization policies of the United States military and jus sanguinis citizenship laws enacted by Congress. (311) The combined operation of...