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

Abstract

There is something special about marriage. The U.S. Supreme Court, in striking down anti-miscegenation laws, restrictions on the right to marry for disadvantaged groups, and most recently, the Defense of Marriage Act, has long recognized the marital union to be "sacred" and "fundamental to…existence." Yet this analysis is dramatically different when courts consider asylum law, where a woman who is seeking refuge in the United States to protect her from a forced marriage abroad will likely be denied protection because the harm she fears is not considered to be a "persecutory" act. She may therefore be forced to spend a lifetime with someone she did not choose and does not love – and also unable to marry someone she does choose to love. Such a result in asylum jurisprudence is a grave error, as it fails to acknowledge the longstanding reverence for the institution of marriage in constitutional law and ignores widely-accepted prohibitions against marriages entered into without consent both in the U.S. and in international law.

This article explores this disconnect between the treatment of marriage in U.S. constitutional law, international law, and U.S. asylum law and argues that courts considering asylum claims based on forced marriage have erred in denying women much-needed protection against non-consensual marriages. It expands upon existing scholarship that analyzes issues in the intersection of family and immigration law as well as the disparate treatment of gender-based asylum claims and posits that courts adjudicating forced-marriage based asylum cases should conform to existing legal standards and recognize forced marriage as a per se persecutory act.

Keywords: asylum, immigration, forced marriage, family law, international law