After the recent Supreme Court ruling in Obergefell v. Hodges, which struck down bans on same-sex marriage, many news and social media outlets focused on the closing paragraph in the majority’s opinion, in which Justice Kennedy glowingly described the institution of marriage. He wrote, in part, that

“[n]o union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death.”

While perhaps unusually poetic of a Justice, the Court’s reverential treatment of marriage in Obergefell is not atypical of the Court; it has long venerated marriage, labeling the institution “sacred” and “noble.” But also notable about Obergefell, is that it highlights the deep chasm between the Supreme Court’s increasing recognition of the unique significance of the marital relationship – and its embrace of the right to marry a person of one’s choosing – and the lower courts adjudicating asylum claims that have rejected the notion that forced marriage is a harm rising to the level of persecution.

As early as the 19th century, in Maynard v. Hill, the Supreme Court validated the marital union as a deeply personal association, opining that marriage created “the most important relation in life,” that had “more to do with the morals and civilization of a people than any other institution.” Thereafter, the Court utilized numerous legal frameworks in striking down limitations on marriage, including labeling the institution a fundamental liberty right in Meyer v. Nebraska, a “basic civil right” in Skinner v. Oklahoma and Loving v. Virginia, and a fundamental right and “constitutionally protected … relationship” in Turner v. Safley. The Court employed Due Process analysis in cases such as Zablocki v. Redhail and Boddie v. Connecticut, where it stated that “marriage involves interests of basic importance in our society.” The Court has also invoked the right to privacy, most notably in Griswold v. Connecticut, where the majority described the marital relationship as beautifully as it did in Obergefell, writing that

“[m]arriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”

Most recently, in U.S. v. Windsor, the 2013 case invalidating the Defense of Marriage Act (DOMA), and Obergefell, the Court held that denying same sex couples the right to marry not only violated liberty protections, but imposed upon them a disability and deprived them of dignity.

In lower courts’ interpretation of immigration law, the legal picture is drastically different, as I have addressed at length in a previous paper. Unlike in the domestic context, where marriage is afforded great respect and the right to marry the person of one’s choosing is Constitutionally protected – largely due to the recognition of the impact that the decision of who to marry has on a person’s life – courts adjudicating asylum claims routinely discount the significance of marriage, regularly characterizing the act of being forced to marry against one’s will as harassment and a non-persecutory act.

As readers of this blog are likely aware, to be eligible for asylum, an applicant must demonstrate past persecution or fear of future persecution. “Persecution” is a term defined to require more than “mere unpleasantness,” but is not limited to extreme acts such as torture. In the case of In re T-Z-, the Board of Immigration Appeals found that persecution could take the form of “deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life.” Violation of one’s human rights or fundamental principles has also been found to be persecution. In Fatin v. INS, the Third Circuit concluded that “persecution is broad enough to include governmental measures that compel an individual to engage in conduct that is not physically painful or harmful but is abhorrent to that individual’s deepest beliefs.”

Despite clear precedent that would allow lower courts to find forcible entry into marriage to be persecution, federal and immigration courts regularly deny asylum to women fleeing forced marriage. For example, Shao Lan Yan v. Holder, the court noted that the applicant “feared that she would be ‘forced to marry a person [she] do[es] not love and do[es] not wish to marry,”’ but ultimately found Ms. Yan, who was promised to the nephew of the chief of her village, not to have suffered persecution. The court discounted the harm of Ms. Yan spending her life with a man she did not care for or choose, which would undoubtedly deprive her of an essential aspect of life (under In re T-Z-) and cause her to engage in what is described in Fatin as conduct that is abhorrent to her deepest beliefs.

As Justice Kennedy opined in Obergefell, and as the U.S. Supreme Court has long found, choosing a partner for marriage is among the most important aspects of life. Even without considering the harms that typically accompany a forced marriage (domestic violence, marital rape, FGM, loss of liberty, etc.), the act of entering into a lifelong relationship against one’s will is, itself, a significant violation. And the persecution becomes more profound when one considers that the collateral consequence of forced marriage is preventing its victim from exercising the “fundamental freedom” of entering into a willing marriage, which courts have held is a social institution vital to identity, dignity, autonomy and well being.

The Supreme Court’s Obergefell ruling continues a long line of cases venerating marriage. Asylum law’s treatment of the institution not only stands in stark contrast to that case law, but also to existing asylum law relating to persecution. Recognizing forced marriage as a per se form of persecution, a violation in itself that does not require proof of additional harms, is therefore necessary in order to provide much-needed protection to those seeking refuge from this obvious harm.