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.