Monday, March 20, 2017
In March of 1907, Congress passed the Expatriation Act, which decreed, among other things, that U.S. women who married non-citizens were no longer Americans. If their husband later became a naturalized citizen, they could go through the naturalization process to regain citizenship.
But none of these rules applied to American men when they chose a spouse.
"It's as though she walks under his umbrella. He puts his arm around her and poof! she's a citizen," says Linda Kerber, a professor who teaches gender and legal history at the University of Iowa. "She has had the good sense to come out from these monarchies and opt for an American. She's a sensible woman, we adore her."
"Whereas an American-born woman who marries a foreign man, oh my goodness, she is disloyal," Kerber said.
When Mackenzie v. Hare — a case challenging the expatriation act that involved a woman married to a British citizen — reached the Supreme Court in 1915, the justices upheld the law, arguing that the women chose to marry knowing this was a consequence so they weren't being forced to expatriate. Then World War I began and hundreds of women found themselves affected by the law.
Once American women got the right to vote in 1920, they started lobbying lawmakers, pushing them to recognize that their citizenship should not be tethered to that of a husband. "There's a big scramble in those first two years for members of Congress to get on the good side of women and to get women to join their constituency," Kerber said. Eventually Rep. John Cable, of Ohio, introduced a bill to address the disparity. He may have been motivated by a nearing bid for re-election.
The Cable Act of 1922, also known as the Married Women's Independent Nationality Act, said women kept their citizenship if they married a man who could become a citizen even if he opted not to. "It sounds as though the Cable Act fixed it, if they married a man eligible for citizenship," Kerber says. However, "there's a lot of fine print."
These expatriated women had to petition the government to regain their citizenship, and their husband's status still played a role in theirs: if he wasn't eligible for citizenship, she could be denied. And if she lived on foreign soil for two years, she could lose her citizenship.
See also Linda Kerber, chap. 1, No Constitutional Right to be Ladies: Women and the Obligations of Citizenship
Leti Volpp, chap. 3, Expatriation by Marriage: The Case of Asian American Women, in Feminist Legal History: Essays on Women and Law (Tracy A. Thomas & TJ Boisseau, eds).