Deported by Marriage: Americans Forced to Choose between Love and Country

49 Pages Posted: 26 Jan 2017

Date Written: January 1, 2017

Abstract

As the Loving v. Virginia case barring prohibitions against interracial marriages reaches its fiftieth anniversary, marriages between people of different national origins continue to be undermined by the law. The Constitution does not protect the marital rights of citizens who marry noncitizens in the same way that it protects all other marriages. Courts have consistently held that spousal deportation does not implicate the rights of American citizens, and the Constitution does not protect the substantive due process rights of noncitizens facing deportation — including the right to marriage. Given the spike in deportations over the past decade, hundreds of thousands of American citizens face a dilemma the Supreme Court has referred to as “intolerable” in other contexts: they must choose between the fundamental right to marriage and the right to live in the United States. This article draws upon the experiences of women whose husbands have been deported to challenge the foundational assumptions underlying many of the cases that have held that spousal deportation does not implicate the rights of citizen spouses, arguing that the Constitution should protect the marriages of binational couples in the same way it protects all other marriages, and that strict scrutiny should apply to assess the constitutional validity of deportations that involve the husbands and wives of U.S. citizens.

Keywords: Deportation, Marriage, Immigration Law

Suggested Citation

Caldwell, Beth C., Deported by Marriage: Americans Forced to Choose between Love and Country (January 1, 2017). Brooklyn Law Review , Vol. 82, No. 1, 2017; Southwestern Law School Research Paper No. 2017-1. Available at SSRN: https://ssrn.com/abstract=2906113

Beth C. Caldwell (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States

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