By Stuart Gaffney–
My family has been in America for over 400 years. My father’s side of the family goes all the way back to Governor William Bradford and the Mayflower, and my mother’s side to Chinese immigration to Hawai’i in the late nineteenth century. Because of that, I’ve never wondered about the security of my own American citizenship. But when Donald Trump on January 20, 2025, issued an executive order attempting to limit the scope of the Fourteenth Amendment’s guarantee of birthright citizenship, it still felt very personal to me.
My mother, Estelle Lau, was an American citizen by birthright citizenship. She was the daughter of Chinese immigrants, and her birth in 1924 was highly symbolic. It was the same year Congress enacted sweeping racist anti-immigration legislation, known by many as the “Asian Exclusion Act” because it effectively ended all immigration from Asia, except for very narrow exceptions.
The plain wording of the Fourteenth Amendment to the U.S. Constitution established birthright citizenship. It reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The Asian American community takes pride that it was a Chinese American who brought the lawsuit that resulted in the U.S. Supreme Court 1898 landmark decision affirming birthright citizenship for the first time–United States v. Wong Kim Ark.
Wong Kim Ark was born in San Francisco in 1873, five years after ratification of the Fourteenth Amendment. Upon attempting to return home after an overseas trip, he was denied re-entry to the U.S. despite the fact he was born here, for the sole reason his parents were Chinese immigrants. He stood up and challenged his exclusion, achieving a victory that would protect countless millions of Americans whose ancestry derive from all around the world. My mother was one of the early beneficiaries of Wong Kim Ark’s insisting on his rights as an American and taking the legal means necessary to protect them.
The Wong Kim Ark decision held that the Fourteenth Amendment protects the citizenship of every person born on American soil, with the narrow common law-based exceptions of children of diplomats of a foreign country and children born of an enemy country occupying the U.S. (as well as American Indians at the time, whose birthright citizenship was later established by federal statute in 1924). Trump’s executive order attempts to undo that time-honored Supreme Court precedent by eliminating birthright citizenship for children who do not have at least one parent who is a citizen or green card holder.
Soon after issuance of the executive order, three separate federal district courts issued nationwide preliminary injunctions against its enforcement. Their decisions made the administration’s overreach abundantly clear. One judge wrote: “The way all branches of government have understood the decision for 125 years—Wong Kim Ark leaves no room for the defendants’ proposed reading” of the Fourteenth Amendment. Another explained the administration’s position was one “the Supreme Court has resoundingly rejected and no court in the country has ever endorsed.”
As such, it was very unsettling when the Supreme Court announced that it would hear oral arguments on an expedited basis on May 15, 2025, on the Trump administration’s application to undo the nationwide aspect of the preliminary injunctions. The administration asks the Court to narrow the injunctions to the individuals who actually brought the lawsuits or identified members of organizational plaintiffs. Twenty-two states, the District of Columbia, and the city of San Francisco also challenged the executive order. The administration argues that those entities have no legal right to bring the lawsuits, and in the event the Supreme Court allows them to go forward, the preliminary injunctions should apply only to those states, and not elsewhere across the country.
Members of the high court’s conservative Republican supermajority likely decided to take the cases so quickly because they have long openly questioned the power of individual federal district court judges to issue nationwide injunctions. Because of that, much of the argument may focus on that issue, instead of the substantive issue of birthright citizenship. But if the conservative Supreme Court supermajority narrows the scope of the injunctions, chaos, confusion, and a flurry of new litigation and deportation actions will likely ensue immediately. The citizenship of numerous babies born after February 19, the executive order’s stated effective date, will be in doubt.
One of the judges who blocked implementation of the Trump executive order described birthright citizenship as “an unequivocal constitutional right,” which “is one of the precious principles that makes the United States the great nation that it is.” His words reflected those of the great abolitionist and human rights advocate Frederick Douglass, who repeatedly embraced birthright citizenship for Americans from all nations in his “Composite Nation” speeches he delivered from the late 1860s to 1875, contemporaneous to ratification of the Fourteenth Amendment.
Stating that every nation has a distinctive character or mission in the world, Douglass declared that U.S. “greatness and grandeur” lay “in the faithful application of the principle of perfect civil equality to the people of all races and of all creeds” and “the genius of our people” who are “gathered here from all quarters of the globe.” As John and I have spoken across Asia about marriage equality and LGBTIQ rights, we too have taken pride in America’s unconditional birthright citizenship.
Douglass particularly highlighted his wholehearted support for immigration and citizenship of Asian Americans, a hotly contested issue of the era. At the very same time Wong Kim Ark was born in San Francisco in 1873, Douglass was traveling the northern U.S., advocating that the “question of Chinese immigration should be settled upon higher principles than those of a cold and selfish expediency”—namely, “human rights” that “rest upon no conventional foundation, but are eternal, universal, and indestructible.”
As part of these speeches Douglass delivered during the decade following the Civil War, he further opined that “it would be unwise to be found fighting against ourselves and among ourselves.” We must partake of Douglass’ wisdom today as the Trump administration attempts to undermine the very fabric of our nation, and we must follow the examples of Wong Kim Ark and countless others of the past and present day who have courageously stood up to defend–and indeed enhance–human rights for all.
John Lewis and Stuart Gaffney, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.
6/26 and Beyond
Published on May 8, 2025
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