The Supreme Court has been asked to overturn a case arguing that under certain circumstances the fear of an abusive arranged marriage can be grounds for asylum.
The plaintiff’s request for asylum granted on appeal by the Second Circuit which argued that where forced marriages are valid and backed by law, the plaintiff “might well be persecuted in China - in the form of lifelong, involuntary marriage.”
The government is now asking the Supremes to overturn this verdict because they are afraid it would make America a haven for women fleeing abusive forced marriages. To be fair, they’re saying this is a decision that should be taken by Congress, and not the courts, but they also warn that this could lead to a flood of women in arranged marriages applying for asylum.
At the center of the case is a woman from China, not India:
At age 19, Gao was sold by her mother for the equivalent of $2,200 to become the wife of a man in her home village who, Gao says, will physically abuse her. [Link]
She was granted asylum by the appeals court, which extended the grounds under which one could traditionally apply for asylum:Approximately 60% of marriages worldwide are arranged
To qualify, an individual must show a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
In most cases, the persecution is meted out by a government. But the Second Circuit said in the Gao case that persecution could also stem from a personal relationship in combination with government-enforced customs.
In particular, the court argued it was the combination of abuse in the marriage and the enforcement of it by the state which was a problem:
women who had been sold into marriage and who live in a part of China where forced marriages are considered valid and enforceable could qualify for refugee protection in the US. The appeals court found that, under such circumstances, Gao “might well be persecuted in China - in the form of lifelong, involuntary marriage…” [Link]
The Bush Administration calls this judicial activism, saying that this decision could lead to a major change in policy:
“The court of appeals’ error … has far-reaching ramifications for immigration policy in light of the fact that approximately 60 percent of marriages worldwide are arranged” [Link]
If the case was upheld, they warn, dire consequences would ensue:
Mr. Clement says the decision by the Second US Circuit Court of Appeals in New York threatens to transform American asylum law into a worldwide haven for women trapped in potentially abusive relationships after being sold into forced marriages. The Bush administration suggests in its brief that if the Second Circuit decision stands, it might trigger a flood of women from around the globe fleeing unhappy arranged marriages. [Link]
Opponents disagree saying that they haven’t seen any such flood since the appeals’ court verdict a year ago.
Does this have a desi angle? Of course it does but not entirely. Desi marriages don’t involve a brideprice, they involve dowry, so money goes in the opposite direction. And I believe that by law (at least in India) you can get out of a marriage that you don’t want to be in, even if the families have made a deal.
Still, I’m not convinced that we might not see cases where women are locked in abusive marriages and for all practical purpose have little recourse, so this might set an interesting precedent.
Lawyers? Lay folk? Whaddyall think?
