An "I do" I choose: how the fight for marriage access supports a per se finding of persecution for asylum cases based on forced marriage.

Author:Nanasi, Natalie
 
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Because it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life s momentous acts of self-definition.

-Goodridge v. Department of Public Health (1)

INTRODUCTION

In the summer of 2013, the country waited anxiously for the Supreme Court to issue rulings in two landmark gay marriage cases that had the potential to fundamentally alter the institution of marriage in the United States. Advocates and opponents of same- sex unions fiercely debated the issue, but although the two sides' positions were widely divergent, each emphasized the unique role of marriage in the social, personal, and legal fabric of life. Edie Windsor, the named plaintiff in the lawsuit (2) seeking to strike down [section] 3 of the Defense of Marriage Act (DOMA), (3) agreed. Ms. Windsor had been in a committed relationship with her partner for forty years prior to their marriage in 2007. (4) Yet she stated that the transformation after entering into the legal union "was profound" and that she has "asked everybody since who gets married after long-term relationships, 'Did it feel different the next day?' and the answer is always 'Yes, absolutely.'" (5)

Ms. Windsor's words were moving but far from novel. Her sentiments echoed decades of Supreme Court decisions that have recognized marriage as not merely a "constitutionally protected ... relationship" (6) but an institution that is "fundamental to our very existence and survival" (7) and "intimate to the degree of being sacred" (8).

The consistent reverence for the marital relationship expressed by the Supreme Court in the domestic sphere, however, stands in stark contrast to the treatment of marriage by courts interpreting asylum law, specifically in the context of cases involving women (9) seeking protection in the United States from forced marriage. Although the underlying law and administrative agency interpretations support a finding that forced marriage is a persecutory act, courts analyzing whether entry into marriage against one's will can be a basis for asylum have rejected the notion of forced marriage as a harm rising to the level of persecution.

In general, a woman fleeing a forced marriage will likely obtain asylum protection only if her narrative fits one of two accepted frameworks--what I will call here the "Violent Honor Crime Story" and the "Abusive Elderly Polygamist Story"--both of which focus not on the harm of forced marriage itself but on associated persecutory acts. If her claim is structured around the former narrative, the retaliation she will face at the hands of her family if she resists the marriage (a so-called "honor crime" (10)), she can make a relatively straightforward application for relief based on her fear of future physical harm. Alternatively, in the latter framework, if she is able to provide certain details about the nature of the marriage that she will be forced into--for example, that she will be entering into a polygamous union with a distant relative who is significantly older than she and is known in her community as being physically abusive to his existing wives--asylum may be granted based on these "component parts" of the forced marriage. (11)

But what about women who cannot provide such information or do not fit neatly into these existing legal categories? Can U.S. asylum law provide a safe haven for a woman who is being forced to marry a man about whom she knows little or nothing, when she cannot prove that attendant forms of persecution such as domestic violence, marital rape, or deprivations of liberty will occur? Put another way, can forced marriage standing alone be a per se basis for a finding of persecution sufficient to merit asylum protection? An analysis of the current state of asylum law suggests that under prevailing judicial interpretations, such a case would be doomed to failure, as U.S. courts interpreting asylum law would refuse to recognize the persecutory nature of the forced marriage itself. U.S. courts regularly reject the notion that forcing a woman to enter into what is arguably life's most important relationship against her will, and thereby also inflicting the related harm of preventing her from choosing a spouse with whom to spend her life, is a significant deprivation rising to the level of persecution, even without the presence of ancillary harms.

Building on existing scholarship that analyzes issues at the intersection of gender, familial relationships, and immigration and family law, (12) and more specifically, the literature that challenges the disparate treatment of gender-based claims in asylum law, (13) this Article explores the disconnect that exists between domestic constitutional jurisprudence and immigration case law when evaluating the importance of marriage. Drawing on both international law and the evolution of U.S. constitutional law regarding marriage equality toward an unequivocal recognition of the right to marry the person of one's choice as a fundamental right, this paper argues that U.S. asylum law can, and should, recognize forced marriage itself as a persecutory act and provide protection to those seeking refuge from this obvious harm.

Part I assesses the limitations of U.S. asylum law as it relates to forced marriage. First focusing on the definition of persecution, it explains how the broadly-defined term--which has been held to include physical harm as well as abuses such as those that are economic or emotional or that constitute violations of fundamental beliefs or human rights--is incorrectly applied in the forced marriage context. This occurs both because immigration and federal courts routinely and erroneously conflate forced marriage with arranged marriage and categorize applicants' valid claims of persecution as mere harassment. This section also demonstrates that because the problem of forced marriage occurs in the context of family, inconsistency has emerged in the analysis of both persecution and the related concept of "nexus." Courts regularly ignore well-established legal theories such as mixed- motives for persecution and inappropriately characterize persecutors' motives as aberrational or private acts. Finally, Part I concludes by discussing Gao v. Gonzales, (14) the only published federal case granting asylum to a victim of forced marriage, and argues that although the case is a positive step in courts' recognition of forced marriage-based asylum claims, its impact has been limited by its procedural history.

Part II provides an overview of the development of U.S. law surrounding the institution of marriage and demonstrates that domestic constitutional law unequivocally considers the right to marry the person of one's choice to be a fundamental right worthy of significant protection. It describes how progress in law and society since the eighteenth century has led to both the requirement of choice and consent in marriage and the recognition of the marital union as a relationship based on emotion that forms the foundation of modern society. This understanding of marriage was the basis of the U.S. Supreme Court's support of the right to marry for disadvantaged populations, such as prisoners and the poor, and its proclamation that "marriage is one of the 'basic civil rights of man'" (15) when striking down an anti-miscegenation statute and affirming the constitutional right to enter into marriage with the person of one's choosing in Loving v. Virginia. In the years after Loving, judicial support for access to marriage continued, as state courts began to grant same- sex couples the right to marry, holding that restricting access to marriage was unconstitutional because it both prevented entry into a uniquely meaningful relationship and denied access to a host of associated legal rights. Most recently, the U.S. Supreme Court reaffirmed its view of the inherent dignity of the marital relationship by striking down the Defense of Marriage Act's discriminatory treatment of legally wed same-sex couples. (16)

Part III reveals how the treatment of forced marriage in international law diverges significantly from that of U.S. courts interpreting asylum law. It describes how numerous international instruments--including the Universal Declaration of Human Rights, the International Convention of Civil and Political Rights, and the Convention on the Elimination of All Fonns of Discrimination Against Women--consider free and full consent to be an essential element of a valid marriage, and therefore, unlike U.S. courts adjudicating asylum petitions, consider forced marriage to be a violation of human rights.

With Parts II and III having established a foundation for respect for marriage in U.S. and international law, Part IV returns to an analysis of asylum law and argues that international law and advances in U.S. constitutional law should guide courts' decision-making in asylum cases based on forced marriage. International law's insistence on consent in marriage clearly establishes that a forced marriage is a violation of international human rights norms. Domestic law's increasing recognition of the unique significance of the marital relationship and protection for the right to marry a person of one's choosing also highlight flaws in courts' reasoning in the asylum context, where forced marriage is not considered a sufficiently harmful act such that its victims merit protection. As forced marriage both devalues marriage and prevents an individual from exercising choice in whom they do and do not marry, this Article concludes by contending that immigration and federal courts interpreting asylum law should adhere to international and constitutional law standards and adopt a per se rule that forced marriage constitutes persecution.

  1. Forced Marriage as a Basis for Asylum

    1. Distinguishing Between Forced Marriage and Arranged Marriage

      Any examination of the...

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