Strangers in a Family Law World?

Defining and redefining the family law canon is an ongoing project, with family law casebooks and scholars increasingly questioning the boundaries (or even the existence) of a canon. Kaiponanea Matsumura’s chapter, Close Resemblances: The Legal Construction of the Asian American Family, enters this conversation with an initial observation that: “Most of the laws and cases that comprise the current family law canon are race-neutral.” (p. 2). Matsumura identifies others, including Dorothy Roberts, Angela Onwuachi-Willig, and Solangel Maldonado who are challenging this race-neutrality, and he celebrates these efforts. Placing the chapter within these challenges to the canon, Matsumura argues that Asian Americans largely “continue to be ignored.” (p. 3)

The chapter asks what happens when we bring Asian American families into the family law conversation – or even center them. That critical question is the basis for the chapter’s dual goals; first, bringing Asian Americans into family law scholarship; and second, in actually doing so, showing how family law has centrally shaped the “model minority concept” that has an ongoing, and profound, effect on Asian Americans and the families they form. In the process, Matsumura shows that laws governing immigration, marriage, citizenship, labor, and military policy did not merely discriminate against Asians. They helped define what qualified as an “American” family in the first place.

As a preliminary matter, Matsumura notes that the terminology used in the chapter—“Asian American” and even “family law” itself—are “contested” and prone to being essentialized. (pp. 3-4) Notwithstanding the complexities surrounding the use of these categories, Matsumura points out the importance of even beginning this project. Along those lines, it is interesting to note that the chapter is not part of a family law-focused book, but one on race: that makes it doubly appropriate for the Jotwell Family Law section, part of the ongoing project to bring race into the field.

Exploring a series of historical episodes, Matsumura shows how family norms themselves became racialized through the legal treatment of Asians and how that then impacted subsequent generations of Asian American families. Chinese immigration during the nineteenth century sharpened the boundaries of whiteness itself. Anti-polygamy discourse transformed monogamy into an allegedly civilizational—and implicitly white—ideal. Asian familial practices were depicted as alien, despotic, or morally suspect, allowing white lawmakers and judges to define the “American family” in opposition to them. Anti-miscegenation laws targeting Asians were not, then, solely about racial purity but were also about the law of the family—and family itself. Immigration restrictions excluding Asian women coupled with anti-miscegenation laws impacted the potential for Asian Americans to form families. On this account, family law does not simply reflect social norms; it actively produces racial hierarchy through the creation of normative family ideals.

In the discussion of World War II military policies, Matsumura uncovers a world in which the federal government sorted families according to race, gender, legitimacy, and perceived cultural loyalty. When World War II began, just over “200 Japanese Americans were married to whites, of which 120 were men,” a statistic that we only know because of tracking by the U.S. military. (p. 16)  Japanese American wives of white husbands were treated differently from Japanese American husbands of white wives; mixed-race children were subject to special procedures to prevent their exposure “to infectious Japanese thought”; family separation became an ordinary administrative tool. (p. 17) These passages reveal how family regulation naturalized (and reinforced) multiple hierarchies.

Indeed, another reason that the chapter is so compelling is Matsumura’s insistence that the histories of immigration law and racial exclusion are not tangential to family life: family regulation through these laws becomes a mechanism through which Asian Americans were racialized as permanently foreign.

In a fascinating twist on the history of Asian American families being viewed as “deviant,” (p. 9), Matsumura links that history to the “model minority myth” of Asians. (p. 23). The chapter adds a crucial dimension to the family law literature (and immigration and civil rights scholarship) by showing how the legal suspicion historically directed at Asian families helped create the opposite stereotype: the disciplined and achievement-oriented Asian American family. Matsumura traces that shift to World War II, when, at the time of Japanese Americans’ detention, President Franklin Roosevelt stated that loyalty, not race, mattered to becoming an American (p. 24). At that point, “[d]espite the grievous unfairness of their situation, many in the Japanese American community found it necessary to embrace the assimilationist imperative.” (id.) Rather than treating the stereotype as simply a post-1965 ideological phenomenon, Matsumura roots it in earlier legal efforts to pathologize Asian families—and Asian American families’ agency in responding.  The argument is subtle and persuasive: the strategic deployment of respectability, marital stability, educational attainment, and family cohesion emerged as a response to a legal regime that had rendered Asian families suspect. The argument works because it links legal exclusion to later strategies of respectability and belonging.

Seen this way, the model minority myth is not simply external stereotyping, but is produced through the interaction between law, survival, and racial discipline. This analysis also helps explain why the “family values” dimension of the stereotype has proven so enduring. Matsumura shows that the contemporary image of the stable, high-achieving Asian American family cannot be disentangled from the earlier legal project that sought to prevent Asian family formation altogether. At this point, Matsumura notes that the myth “generalizes about highly distinctive groups in ways that obscure disadvantages and underrepresentation faced by some ethnic communities as well as ongoing discrimination faced by all” (p. 31) (a point that could have been even further explored).

Family law scholarship has increasingly recognized that the state governs families through institutions extending far beyond domestic relations courts and the public welfare system. While building on the scholarship of others, Matsumura’s chapter opens up new conversations.  It insists that we cannot understand the history of American family law while bracketing immigration restrictions, racial exclusions, or labor policies that deliberately prevented Asian American families from forming. This new reading can (and should) play a critical role in the effort to reshape how family law scholars understand the field we study and teach.

Editor’s note: Reviewers choose what to review without input from Section Editors. Jotwell Family Law Section Editor Kaiponanea Matsumura had no role in the editing of this article.