ABSTRACT

The existence of a civil society is premised on the coming together of individuals. Each of those individuals has certain rights, but some of those rights must be limited in order for a society to function. The eternal struggle of Anglo-American liberalism has been to find the proper balance between the taking of some rights with the protection of others. This tension between two fundamental needs of a democratic society has been thrust into the news recently in the cases of Mullins v. Masterpiece Cakeshop, State v. Arlene’s Flowers, and Elane Photography v. Willock. In these cases, a cake-maker, a florist, and a photographer refused to, respectively, create a custom wedding cake, create custom wedding flower arrangements, and photograph a wedding. The couples each brought suit using their state’s statute which prohibited refusing service on the basis of sexual orientation. The service providers raised two defenses based in the First Amendment: the right to be free from compelled speech and the right to free exercise of religion. While both arguments are germane to the issues presented in the cases, this Note’s purpose is to provide a more thorough and searching analysis of the individual rights that are being threatened. In particular, this Note will examine three potential bases for alternative arguments supporting the liberty interests in those cases. These potential bases include the Thirteenth Amendment and its prohibition of involuntary servitude; property law and the right to exclude; and contract law and the freedom to, or more specifically from, contract. While arguments based on these doctrines are not often raised in modern constitutional jurisprudence, a broader analysis based on these doctrines can shed light on the various interests at stake in these cases and offer new ways of thinking about the timeless struggle to balance rights in American society.

INTRODUCTION

Liberty is an illustrious concept, an ideal that fills the hearts and minds of each successive generation with promises of a better tomorrow, and a principle that serves as a foundation of western civilization. However, liberty is as elusive as it is illustrious. Sometimes, liberty is even counterintuitive. In today’s world, there are many conflicts between positive rights, those which must be given, and negative rights, those which are there to take away. In order to pursue the greatest liberty for the most people, negative rights must be emphasized, because giving positive rights to some inherently involves taking negative rights from others.

The distinction between positive and negative rights is often at the forefront of political and legal debates. The right to abortion expounded in Roe v. Wade1 is a negative right, and the Court denied the positive right to a required abortion funding in Maher v. Roe.2 The Hobby Lobby case balanced the negative right of the owners of Hobby Lobby, a closely held corporation, to their religious beliefs with the positive rights of the workers to health insurance that covered contraceptives.3 Every election there seems to be debate about taxes, freedom from which is a negative right, and social safety nets, which are positive rights. These conflicts are common place in today’s society. This Note examines one such clash.

I. THE PROBLEM

A. Masterpiece

This case juxtaposes the rights of complainants, Charlie Craig and David Mullins, under Colorado’s public accommodation laws to obtain a wedding cake to celebrate their same-sex marriage against the rights of respondents, Masterpiece Cakeshop, Inc., and its owner, Jack C. Phillips, who contend that requiring them to provide such a wedding cake violates their constitutional rights to freedom of speech and the free exercise of religion.4

In July 2012, Craig and Mullins, a same sex couple, entered Masterpiece.5 Masterpiece, located in Lakewood, Colorado, is owned by Jack Phillips.6 Mr. Phillips creates custom cakes: “Custom designs are his specialty: if you can think it up, Jack can make it into a cake!”7 Craig and Mullins asked Phillips to make them a custom cake for their wedding, but Phillips refused due to his religious beliefs.8 Mr. Phillips made it clear that he would be more than willing to sell or make them any other sort of baked good, just not a cake for their wedding.

Craig’s mother later called Phillips; he informed her that Masterpiece did not make cakes for same-sex weddings due to Phillips’s religious beliefs and because same-sex marriages were not recognized in Colorado at the time. 10 Craig and Mullins then filed charges of discrimination against Masterpiece.11

Colorado’s statute, which was the basis for the suit, declared it unlawful for a place of public accommodation to refuse to provide a service for someone, among other reasons, because of sexual orientation. 12 In Colorado, a place of “public accommodation” is “any place offering services . . . to the public . . . .” 13 Mr. Phillips defended himself by claiming the statute, as applied, violated his First Amendment rights to free exercise of religion 14 and freedom from compelled speech. 15 The Court handed down a decision in favor of Mr. Phillips, but it was on limited grounds. 16

B. Arlene’s Flowers

The state of Washington has a similar statute prohibiting discrimination by service providers.17 This statute is the basis for a case similar to Masterpiece—State v. Arlene’s Flowers, Inc. 18 Barronelle Stutzman owns Arlene’s Flowers Inc., located in Washington.19 Stutzman, though she had been happy to sell the couple flowers in the past, refused to provide flowers for the wedding of Robert Ingersoll and Curt Freed, a same-sex couple. 20 Stutzman says she then gave Ingersoll the name of another florist.21 Both the flower shop and the couple drew a slew of media attention.22 Ingersoll received a variety of offers from other florists to do his wedding about twenty times over.23 But the media coverage was far from unified; Stutzman received threats to her business, and the couple received so much attention that they scaled down their wedding and had it in their own home.24 Stutzman defended the suit on grounds similar to those in Masterpiece.25

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† Law student, Northern Illinois University Law School.

1 Roe v. Wade, 410 U.S. 113 (1973).

2 Maher v. Roe, 432 U.S. 464 (1977).

3 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 1 (2014).

4 Masterpiece Cakeshop, Ltd., v. Colo. Civ. Rts. Commission, 584 U.S. 1 (2018).

5 Id.

6 Id. at 3.

7 Masterpiece Cakeshop, https://masterpiececakes.com (last visited Oct.  8, 2018).

8 Masterpiece Cakeshop, 584 U.S. at 1.

9 Id. at 4.

10 Id.

11 Id. at 1.

12 “(2)(a) It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or, directly or indirectly, to publish, circulate, issue, display, post, or mail any written, electronic, or printed communication, notice, or advertisement that indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation will be refused, withheld from, or denied an individual or that an individual’s patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” COLO. REV . S TAT. § 24-34-601(2)(a)(2018).

13 Masterpiece Cakeshop, 584 U.S. at 5.

14 Id. at 7.

15 Id.

16 See id. at 18.

17 “(1) It shall be an unfair practice for any person or the person’s agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement, except for conditions and limitations established by law and applicable to all persons, regardless of race, creed, color, national origin, sexual orientation, sex, honorably discharged veteran or military status, status as a mother breastfeeding her child, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability: PROVIDED, That this section shall not be construed to require structural changes, modifications, or additions to make any place accessible to a person with a disability except as otherwise required by law: PROVIDED, That behavior or actions constituting a risk to property or other persons can be grounds for refusal and shall not constitute an unfair practice.” WASH. REV. CODE ANN. § 49.60.215(1)(LexisNexis 2011).

18 State v. Arlene’s Flowers, Inc., 389 P.3d 543, 551 (Wash. 2017).

19 Id. at 548.

20 Id.

21 Id. at 549.

22 Id.

23 Barronelle Stutzman, I’m a Florist, but I Refused to Do Flowers for My Gay Friend’s Wedding, THE WASHINGTON POST (Jan. 10, 2018), https://www.washingtonpost.com/posteverything/wp/2015/05/12/im-a-florist-but-i-refused-to-do-flowers-for-my-gay-friends-wedding/?utm_term=.3a3c313b6351).

24 Arlene’s Flowers, 389 P.3d at 549.

25 Id. at 552.

 

ABSTRACT

The nations of Europe have been characterized in recent years by a significant increase in cultural and religious diversity. While this has brought a cultural richness, it has also increased cultural tensions. As one commentator has noted, “Clashes, provocation, and dissent between religiously and culturally different groups have characterized many mainstream European concerns.”1

In E.S. v. Austria (2018), the European Court of Human Rights (ECtHR) upholds Austria’s effort to promote “religious peace” and “mutual tolerance” by convicting an individual for making statements highly critical of Mohammad.2 The ECtHR does so by offering Austria a wide margin of appreciation to determine how to navigate the difficult challenges of religious and cultural diversity, but also by largely ignoring the text of the European Convention of Human Rights – and even other principles of international law on which it purports to rely.3 It does so also in the name of strengthening freedom of religion. But the ECtHR is mistaken. Not only does E.S. severely restrict freedom of expression, it also may actually reduce the freedom of religion as understood in the Convention.

Part One of this Article focuses on the unique factual and political circumstances that gave rise to the prosecution of E.S. as well as the analysis of the courts, from the Austrian national courts to the ECtHR. Part Two discusses how the ECtHR’s decision in E.S. v. Austria is deeply flawed in three ways. First, the ECtHR engages in almost no serious textual analysis of the relevant Convention articles. Second, in the place of meaningful textual interpretation, the ECtHR applies the margin of appreciation doctrine to support its own analysis which offers little clarity or certainty and leads to a troubling result. Third, the ECtHR reaches a decision that puts it in tension with other key international law standards that it identifies as relevant to the case.

I. PART ONE: CASE HISTORY

A. Facts of the Case

In January of 2008, the Freedom Party Institute (Bildungsinstitut der Freiheitlichen Partei sterrecihs) held several seminars entitled “Basic Information on Islam” (Grundlagen Des Islams).4 The Freedom Party is a right-wing populist and national-conservative political party in Austria.5 The party began attacking the influence of Islamic extremism in the early 1990s after the issue of immigration became an increasingly important issue for voters in Austria.6 In 1993, the Freedom Party was among the groups promoting the controversial “Austria First” initiative, which sought to collect signatures for a referendum on immigration restrictions.7 The party expanded its attack on Islamic extremism to include Islamisation and the increasing number of Muslims in general.8 The party has also fought the practice of distributing free copies of the Koran.9

The “Basic Information on Islam” seminars were open to the public and were publically advertised on the Freedom Party website.10 In addition, the party had distributed a leaflet specifically aimed at young voters, promoting the seminars.11 Two seminars were held on October 15th and November 12th of 2009, with thirty participants each.12 E.S.13 was the main speaker and spoke for a total of twelve hours during both seminars.14

E.S. made two statements during this twelve hour period that placed her in legal jeopardy with the Austrian court:

and;

E.S.’s statements concerned the marriage of Muhammad to Aisha as recorded in the Sahih Al-Bukhari, one of the Kutub al-Sittah (six major hadith collections) of Sunni Islam.17 Sahih Al-Bukhari provides, “It is reported from Aisha that she said: The Prophet entered into marriage with me when I was a girl of six . . . and at the time [of joining his household] I was a girl of nine years of age,” and also, “Khadija died three years before the Prophet departed to Medina. He stayed [alone] for two years or so. He married Aisha when she was a girl of six years of age, and he consummated that marriage when she was nine years old.”18

E.S.’s statement, “[w]e have huge problems with that today, that Muslims get into conflict with democracy and our value system” referred to child marriage in many predominately Muslim countries.19 The Sahih Al-Bukhari has influenced domestic law concerning the age of marriage in many predominately Muslim countries. This practice has been condemned by the UN Committee on the Rights of the Child that states, “[g]irls [in many Muslim nations] cease to be [a] minor after [nine] lunar years. Thus, after this age, they are excluded from the protection of the Convention on the Rights of the Child.”20 “According to the United Nations Population Fund (UNFPA), between 2011 and 2020, 50 million girls under 15 years old” were married, a phenomenon largely rooted in predominately Muslim countries.21 “The minimum age for marriage in Iran is 13 years for girls and 15 for boys.”22 It has been reported that in Iran, 43,459 girls under 15 years became married in 2009 and 716 girls under 10 years married in 2010.23 The Grand Mufti of Saudi Arabia said in 2012 that girls are ripe for marriage at 12 years, and it is only since 2013 that the minimum age of marriage for girls was raised to 16 and the consent of the child required.24

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† Jeffrey Brauch is a professor at Regent University School of Law and the executive director of the school’s Center for Global Justice, Human Rights, and the Rule of Law. Among other courses he teaches International Human Rights and International Criminal Law.

†† Cody Goings attends Regent University School of Law. He is thankful to Professor Brauch and his wife, Leigh Goings.

1 Parvati Nair, Cultural and Religious Diversity in Europe: The Challenges of Pluralism, IEMED. MEDITERRANEAN YEARBOOK 328, 328 (2014), https://www.iemed.org/observatori/arees-danalisi/arxius-adjunts/anuari/anuari2014/nair_religious_diversity_europe_pluralism_IEMed_yearbook_2014_EN.pdf.

2 E.S. v. Austria, App. No. 38450/12, Eur. Ct. H.R. ¶¶ 41, 44 (2018).

3 Id. ¶ 44.

4 Id. ¶ 7.

5 HANSPETER, KRIESI ET AL., POLITICAL CONFLICT IN WESTERN EUROPE 52 (Cambridge Univ. Press 2012); JOHANNES JÄGER & ELISABETH SPRINGLER, ASYMMETRIC CRISIS IN EUROPE AND POSSIBLE FUTURES: CRITICAL POLITICAL ECONOMY AND POST-KEYNESIAN PERSPECTIVES 110 (Routledge, 2015); Wolfram Nordsieck, Austria, PARTIES & ELECTIONS EUR. (2017), http://www.parties-and-elections.eu/austria.html.

6 Susi Meret, The Danish People’s Party, the Italian Northern League and the Austrian Freedom Party in a Comparative Perspective: Party Ideology and Electoral Support, SPIRIT PHD SERIES 1, 194 (2010), http://vbn.aau.dk/files/20049801/spirit_phd_series_25.pdf.

7 Id.

8 See id. at 198–99; see also Vexed in Vienna, ECONOMIST, May 21, 2016, at 50.

9 Disaster averted—for now, ECONOMIST, May 28, 2016, at 12.

10 E.S. v. Austria, App. No. 38450/12, Eur. Ct. H.R. ¶ 7 (2018).

11 Id.

12 Id. ¶ 8.

13 The Court granted E.S. anonymity on the Court’s own motion under Rule 47 § 4 of the Rules of Court; which provides: “Applicants who do not wish their identity to be disclosed to the public shall so indicate and shall submit a statement of the reasons justifying such a departure from the normal rule of public access to information in proceedings before the Court. The Court may authorize anonymity or grant it of its own motion”. Eur. Ct. H.R., Rules of Court, at 24–25, (Aug. 1, 2018), https://www.echr.coe.int/Documents/Rules_Court_ENG.pdf.

14 E.S., App. No. 38450/12 ¶ 34.

15 Id. ¶ 13.

16 Id.

17 HAROLD G. KOENIG & SAAD AL SHOHAIB, HEALTH AND WELL-BEING IN ISLAMIC SOCIETIES 30–31 (Springer 2014) [hereinafter KOENIG & SHOHAIB].

18 Zahid Aziz, Age of Aisha (ra) at time of marriage, LAHORE AHMADIYYA MOVEMENT, http://www.muslim.org/islam/aisha-age.htm(last visited Feb. 21, 2019).

19 E.S., App. No. 38450/12 ¶ 13.

20 GREGOR PUPPINCK, Written Observations in the Case of E.S. v. Austria, 8 (Eur. Ctr. for Law & Justice 2017), http://9afb0ee4c2ca3737b892-e804076442d956681ee1e5a58d07b27b.r59.cf2.rackcdn.com/ECLJ%20Docs/Written%20Observations%20E.S.%20v.%20Austria.pdf[hereinafter Puppinck].

21 Id.

22 Id.

23 Robert Tait, Alarm as hundreds of children under age of 10 married in Iran, TELEGRAPH (Aug. 26 2012), https://www.telegraph.co.uk/news/worldnews/middleeast/iran/9500484/Alarm-as-hundredsof-children-under-age-of-10-married-in-Iran.html.

24 Sara Anabtawi, Girls ready for marriage at 12 – Saudi Grand Mufti, ARABIAN BUS. (Feb. 20, 2019), http://www.arabianbusiness.com/girls-ready-for-marriage-at-12- saudigrand-mufti-455146.html#.V0NBKfmLRaQ.

INTRODUCTION

On December 10, 2015, the Supreme Court of British Columbia overturned a decision by the Law Society of British Columbia (“LSBC”) that previously stood to usurp the religious rights of Trinity Western University (“TWU”) and its expected law school attendants by denying the school accreditation due to the school’s religious-based sexual restrictions on students and faculty. 1 The procedural history leading up to the Supreme Court is as follows:

The LSBC, in denying accreditation, overstepped its powers conferred upon it by the Federation of Law Societies of Canada (“FLS”).3 While the LSBC generally has jurisdiction to decide whether to approve a law school’s faculty, this jurisdiction only extends to the academic qualifications of the school. 4 This Comment will discuss how the Court correctly decided in favor of TWU, taking into consideration the otherwise sufficient academic requirements of the school and why TWU imposes sexual restrictions on its faculty and students so as to reflect evangelical Christian beliefs and practice. This Comment will also discuss how this decision serves as a great advancement for religious rights in Canada because it makes the legal profession more inclusive, and does not serve as a restriction on the LGBT community or the community at large, nor does it entail state sponsored religion.

I. THE FACTS

Evangelicalism, a protestant subculture, represents approximately 11-12% of the Canadian population, therefore forming a minority religious subculture. 5 TWU is the largest privately funded evangelical Christian school in Canada, currently offering education to roughly 4,000 students.6 The law school was still a proposal, pending accreditation, prior to the Supreme Court decision.7 TWU’s mission statement is as follows:

Certain restrictions on sexual activity are practiced by Evangelicals and are therefore encompassed by the school’s mission statement.9 Such restrictions include a belief that marriage may solely exist between one man and one woman and that premarital sex is also in violation of the sanctity of marriage.10 Ultimately, students and staff are required to “sign a covenant pledging to abstain from sexual intimacy outside of marriage between one man and one woman. Critics claim it infringes the rights, in particular, of lesbian and gay students.” 11 These restrictions on sexual behavior are ultimately what triggered the LSBC to deny accreditation to the school by refusing to approve the faculty. 12 After being denied accreditation, “TWU sought a declaration that the society’s decision is ultra vires and invalid and that it unjustifiably infringes on their Charter rights.”13

ABSTRACT

Muslim societies now have embraced, more or less, the ideas and institutions of constitutionalism. It may be said that the rule of law, public consent to the political authority, and basic citizens’ entitlements are among the main constituent elements of constitutionalism. Modern law holds a particular status among those elements. It is, inter alia, state-made and amoral, and functions as a unifying thread in the fabric of constitutionalism, which in turn regulates a nation (i.e., a pluralistic society). Muslims always have insisted that the law should comply with or at least not contradict Sharia. They have in fact conceived modern law as a form, which can and ought to be instantiated with the substance of Sharia. This substance (Sharia) is, however, supposed to be, inter alia, jurist-made and moral. Could such a substance accommodate the public consent orientation and the amoral nature of legal rules that regulate the public life of a pluralistic society, and secure the rights of its members? If the answer is in the negative, what could be the way out?

INTRODUCTION

It goes without saying that over the last one and a half centuries, modern ideas and institutions, and in particular, constitutionalism with its extended ramifications, have found their way into traditional Muslim societies in one way or another.¹ The adoption or implementation of constitutional ideas and institutions in those societies, however, has not been an easy task; and the process has not yet reached its culmination point.² It is difficult to locate a Muslim society that can genuinely assert that it has managed to establish and develop, in a proper sense, constitutional concepts and institutions such as the rule of law, individual liberty and democracy.³

Constitutionalism, as an ideal, which soon will be explored in more detail, has suffered various setbacks in Muslim polities. The setbacks may be classified into two main categories of theoretical and practical, as they may also be divided into political, cultural, social and economic.⁴ This Article concentrates on one of the theoretical or cultural hindrances to the adoption of constitutionalism by Muslim societies. That is to say, Muslims seem to have misconceived one of the most significant elements (if not the most important element) of modern life, namely the “law.” Hence, they have apparently been unable or unwilling to bring about and benefit from a rather legitimate and functioning political system on the basis of the rule of law.⁵ In consequence, they have deprived themselves of a healthy economic, social and cultural environment that is usually based, inter alia, on a robust legal system.⁶

In what follows, first, this Article briefly explains the main pillars of constitutionalism. Second, the characteristic features of the law as a unifying element of these pillars are examined. Third, the concept of Sharia is explored. Fourth, and in the light of the discussions in the previous two sections, the conundrum with which Muslims have been confronted in the age of constitutionalism is illustrated. Finally, this Article concludes by making a few remarks on the likely ways out of the problem.

I. CONSTITUTIONALISM

Constitutionalism is indeed a broad title for various values and institutions that are supposed to limit the powers of the government.⁷ It may be said, however, that the basic and original value is that of limiting the government to law.⁸ Even those constraining values that are really complementary to the law, such as the public consent to the political authority and the basic entitlements of the people, ought to be eventually actualized by the law otherwise they merely remain at a rhetorical level with no practical impact.⁹ It should be added that the limitation imposed by law defines both the range of powers and legitimacy of the government.¹⁰ On the other hand, putting aside the possibility that governments can limit themselves willingly, the idea of constitution has been put forward in order to entrench the said constraints in such a way that power-holders may not readily remove them.¹¹

Accordingly, the first pillar of constitutionalism is the idea and institution of the rule of law.¹² The core idea of the rule of law refers to the substitution of the rule of man by the rule of law.¹³ That is to say, the rule of law has been constantly believed to be, and is indeed, among other things, the best way of countering the problem of the arbitrary rule of a man or a group of men over other members of a society, due to which most of the misfortunes of social life arise.¹⁴

The second pillar of constitutionalism is the system of separation of powers.¹⁵ The necessities of an efficient management of public affairs, and also the idea of the imposition of limits on this management have led to a division of labor among the holders of public powers—a mechanism that was later called the separation of powers of the government (i.e., the separation of the legislature, the judiciary and the executive).¹⁶ Also, in order for the division of powers and responsibilities not to undermine the rule of law, it is required to be a balanced separation.¹⁷ The government must be balanced in the sense that none of the three powers should hold so much power and discretion that outweighs the other two. Hence, any imbalance means one branch is able to interfere with and exert influence on another branch’s proper functioning, thus leading to an arbitrary method of governance.¹⁸

The third pillar of constitutionalism, public consent, took shape when endeavors were made to find an answer to the question raised against the wide range of powers and responsibilities held by the government at the early modern era.¹⁹ In other words, public governance reached a point in its history where the divine and natural models of, and justifications for, an extended and hugely powerful political and administrative authority were no longer considered to be a matter of fact.²⁰ There was indeed a strong demand for some kind of explanation and justification for that authority.²¹ A theory of public consent was first put forth by certain scholars like Thomas Hobbes,²² and then developed into a social contract framework by others such as Jean-Jacque Rousseau.²³ On this basis, only those governing arrangements and powers that had been consented to by the public were legitimate.²⁴

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1 See Said Amir Arjomand, Introduction to CONSTITUTIONAL POLITICS IN THE MIDDLE EAST: WITH SPECIAL REFERENCE TO TURKEY, IRAQ, IRAN, AND AFGHANISTAN 1–3 (Said Amir Arjomand ed., 2008).
2 See id. at 1–10 (tracing the difficulties that the Islamic world has experienced in creating constitutional democracies).
3 See, e.g., id. at 5, 67–70.
4 See Mohammad Hashim Kamali, Constitutionalism in Islamic Countries: A Contemporary Perspective of Islamic Law, in CONSTITUTIONALISM IN ISLAMIC COUNTRIES: BETWEEN UPHEAVAL AND CONTINUITY 19, 19–32 (Rainer Grote & Tilmann J. Roder, eds., 2012); see also Ebrahim Afsah, Contested Universalities of Internal Law: Islam’s Struggle with Modernity, 10 J. HIST. INT’L L. 259, 268–69 (2008).
5 Hossein Esmaeili, The Nature and Development of Law in Islam and the Rule of Law Challenge in the Middle East and the Muslim World, 26 CONN. J. INT’L L. 329, 331 (2010).
6 See WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS 26 (1995) [hereinafter MULTICULTURAL CITIZENSHIP]; Strobe Talbott, Forward to KENNETH, W. DAM, THE LAW-GROWTH NEXUS: THE RULE OF LAW AND ECONOMIC DEVELOPMENT, 14 (2006) (discussing the importance of institutions to creating a strong economy); Stephen Haggard & Lydia Tiede, The Rule of Law and Economic Growth: Where Are We?, 39 WORLD DEV. 673, 681 (2011); Will Kymlicka, The Rise and Fall of Multiculturalism? New Debates on Inclusion and Accommodation in Diverse Societies, 61 INT’L SOC. SCI. J. 97, 106–08 (2010) (explaining how instability causes fear and suppression of minorities, whereas when nations feel secure they are more likely to treat their minorities fairly).
7 See Larry Alexander, Introduction to CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS 2–3 (Larry Alexander ed., reprt. 1999) (1998) (discussing the concept of constitutionalism as meta-rules that are composed of agreed upon norms).
8 See N.W. BARBER, THE CONSTITUTIONAL STATE, 78 (2010); CHARLES HOWARD MCILWAIN, CONSTITUTIONALISM: ANCIENT AND MODERN 21 (rev. ed. 1947) (1940); BRIAN TAMANAHA, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY 114 (2004).
9 See M.J.C. VILE, CONSTITUTIONALISM AND THE SEPARATION OF POWERS 1 (1967).
10 See Tom Ginsburg, Constitutionalism: East Asian Antecedents, 88 CHI.-KENT L. REV. 11, 12–13 (2010).
11 Larry Alexander, What are Constitutions, and What Should (and Can) They Do? 28 SOC. PHIL. & POL’Y 1, 3–4 (2011).
12 ALEXANDER, supra note 7, at 4–5.
13 Joseph Raz, The Rule of Law and Its Virtue,  93 L. Q. REV. 195, 196 (1977).
14 See id. at 202–03, 205.
15 VILE, supra note 9, at 1–2.
16 See id.; see also; ERIC BARENDT, AN INTRODUCTION TO CONSTITUTIONAL LAW 14–17 (1998); Torsten Persson et al., Separation of Powers and Accountability, 112 Q. J. ECON. 1163, 1164, 1166–68, 1198–99 (1997).
17 See EOIN CAROLAN, THE NEW SEPARATION OF POWERS: A THEORY FOR THE MODERN STATE 183–84 (2009); JAMES W. CEASER, In Defense of Separation of Powers, in SEPARATION OF POWERS: DOES IT STILL WORK? 168, 179–81, 186 (Robert A. Goldwin & Art Kaufman, eds., 1986); see also D. Brooks Smith, Promoting the Rule of Law and Respecting the Separation of Powers: The Legitimate Role of the American Judiciary Abroad, 7 AVE MARIA L. REV. 1, 18–19 (2008).
18 See VILE, supra note 9, at 2.
19 See Bruce P. Frohnen, A Problem of Power: The Impact of Modern Sovereignty on the Rule of Law in Comparative and Historical Perspective, 20 TRANSNAT’L L. & CONTEMP. PROBS. 599, 605–06 (2012).
20 MARTIN LOUGHLIN, THE IDEA OF PUBLIC LAW 13–14 (2003).
21 See id. at 13.
22 THOMAS HOBBES, LEVIATHAN 126, 133, 135 (Oxford Univ. Press 1909) (1651).
23 See Jean-Jacques Rousseau, The Social Contract and Discourses, in EVERYMAN’S LIBRARY: PHILOSOPHY AND THEOLOGY 14–15 (Ernest Rhys ed., G. D. H. Cole trans., J.M. Dent & Sons Ltd. 1923)(1913) (describing the contract that citizens voluntarily form with society).
24 See JOHN DUNN, Contractualism, in THE HISTORY OF POLITICAL THEORY AND OTHER ESSAYS 39, 52, 55–56 (1996); RUSSELL HARDIN, LIBERALISM, CONSTITUTIONALISM, AND DEMOCRACY 141, 146–47, 149 (1999).

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† Professor of Public Law and Jurisprudence, Shahid-Beheshti University, Tehran (formerly National University of Iran). The first version of this Article was read during a seminar at the Institute of Ismaili Studies, London, on April 09, 2015. The author would like to express his gratitude to the Institute for giving him the opportunity to share certain ideas with the respectable audience. He deeply appreciates the excellent questions the audience at the seminar put forward, and also would like to thank Dr. Mahnaz Bayat, Faezeh Ameri, Fatemeh Bakhshizadeh and Shirin Boroumand for their valuable comments and assistance in the completion of this Article.

ABSTRACT

Germany maintains strict compulsory education laws that prevent families from educating their children at home. Germany strictly enforces these laws, with little regard to the families’ incentives to remove their children from the public schools. For example, these laws contain no exemption for families interested in homeschooling for religious purposes. The absence of such an exemption seems to contradict the internationally recognized right to religious freedom, a right concretely granted through three international treaties that Germany has both signed and ratified.

Several decisions by the European Court of Human Rights (ECHR)  give little to no credence to religious freedom within a homeschooling rights context. These decisions reflect a government’s preference to restrict homeschooling, justified primarily by a need to “stamp out parallel societies.”

This Note suggests that Germany’s compulsory education laws, which originate from Adolf Hitler’s Third Reich, are overly broad, brutally enforced, and they restrict a family’s ability to practice their religion through homeschooling. The Note proposes an alternative framework that the ECHR could employ to evaluate the both the legitimacy of such laws and the petitions by homeschooling families. This framework allows for courts to account for both a potentially reasonable law and weigh it against the religious interests of a family. Incorporating an approach will promote consistency, reliability, and objective analysis by a reviewing court, and will ultimately ensure an appropriate balance between religious liberty and state interests in ensuring an educated body of citizens.

INTRODUCTION

On August 29, 2013, the German Wunderlich family experienced a jolting break from their traditional morning routine.¹ At 8:00 a.m. that Thursday morning, a swarm of twenty state officials broke down the Wunderlich’s house door with a battering ram and took into custody all four of their children, each under the age of fifteen.² A police officer shoved Dirk Wunderlich’s, the father, into a chair, and refused to allow him to make an initial phone call.³ The officer physically restrained Mr. Wunderlich because the judicial order authorizing the removal of the children also permitted the army of state officials to use force.⁴ The German government separated this family and imposed criminal charges on the parents for homeschooling, an act in violation of Germany’s strict compulsory education laws.⁵

As more families around the globe become dissatisfied with their government-run school systems, the Wunderlich story is not uncommon.⁶ In 2006, five German families sought to remove their children from school temporarily because of certain required sex education classes that conflicted with their religious worldviews.⁷ The European Court of Human Rights (ECHR) denied their petition.⁸ That same year, the Konrad family petitioned before the ECHR requesting that the state exempt them from their region’s compulsory education statute so that they could educate their children in conformity with their religious and moral beliefs.⁹ The ECHR denied their petition.¹⁰ In 2013, the Romeike family sought legal shelter in the United States in fear that the German government would separate them for trying to homeschool, even when homeschooling for religious purposes.¹¹ Germany denied their request for an exemption and the Sixth Circuit denied their claim for asylum.¹²

This Note proposes that the German laws at issue in the aforementioned cases conflict with the internationally recognized right to religious freedom. This freedom encompasses parents’ rights to homeschool their children. This Note explores the issue of religious freedom and its extension to the right to homeschool in six main parts. In Part I, it begins by exploring the general concept of religious freedom and its significance to society. Part II examines both the nature of international religious freedom and its relation to Germany’s compulsory educational legal system. Part III accounts for a domestic perspective in Romeike v. Holder, noting language in the American system that supplements this threat to religious freedom. Part IV discusses homeschooling: what it is, why it is done, and why its nature comports with international religious freedom. Part V explains two ECHR cases involving both homeschooling and religious freedom. Part VI argues that the ECHR used a faulty approach in analyzing those cases, and presents the correct alternative analysis.

I. RELIGIOUS FREEDOM: ITS NATURE AND SIGNIFICANCE TO CIVIL SOCIETY

Certain activities exist strictly in a religious context: prayer, church attendance, tithing, giving to the poor, and the taking of communion—to name a few within the Christian faith.¹³ Because a Christian’s relationship with God is the driving force behind these activities, to restrict the performance of these activities is to infringe on one’s freedom of religion.¹⁴

The freedom of religion is the liberty to act in accordance with one’s religious convictions and thus with the choices they make as a result of those convictions.¹⁵ One may externally discern these convictions by focusing on the religious texts, longstanding traditions, or rules imposed by a legitimate institution or its representative.¹⁶ When a person acts because of his religious beliefs, the state has very little leeway in restricting the activity.¹⁷

Because one of the cores of civil society is freedom, and religious  liberty is an important manifestation of freedom, restricting the activity presents a detriment to society.¹⁸ Civil society is important because of the “social capital” it creates through the proliferation of certain virtues among its members: commitment, responsibility, and trust.¹⁹ Each of these ideals enables citizens to contribute to the “common good of society.”²⁰ The state furthers the ability of citizens to pursue these values by not interfering with their practices.²¹ In other words, by restraining itself in its regulatory power to a certain extent, it may permit citizens to contribute to the common good.

This describes the nature of civil society and freedom in general. What does religion, and therefore religious freedom, specifically offer to encourage individuals to contribute to society’s common good?Speaking primarily of monotheistic religions, people are convinced that behaving in a responsible and dedicated way reflects a mindset where their Creator primarily holds them accountable.²² This accountability contains a “commitment to build the common good, through personal responsibility and a relation of trust with other persons [that] is generated by recognition of the truth that has been given by God to human beings.”²³

While homeschooling is not only practiced by Christians, this Note focuses on the Christian faith due to its wide prevalence within the homeschooling communities.²⁴ Christianity is a unique monotheistic religion because it is one of the few that focuses on a loving relationship between a single all-powerful deity and humans as the deity’s creation.²⁵ This definition is important because relationships contain an element of choice, an element also inherent within the concept of liberty.²⁶ According to Christianity, a legitimate religious experience—the relationship with God—thrives only within a domain of freedom.²⁷ As one scholar explains,

This explanation of the Christian faith and its relationship to a Christian’s interaction with the state becomes important in the discussion of the general choice to homeschool since, as the following sections point out, religious fundamentalists dominate that particular community.

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1 Verboten Values: Home Schooling in Germany and the Future of Freedom, THE FEDERALIST (Sept. 18, 2013) http://thefederalist.com/2013/09/18/verboten-values-2/.
2 Id.
3 Billy Hallowell, ‘Brutal and Vicious’: Armed German Police Storm Homeschooling Family’s House and Forcibly Seize Children, Report Claims, THE BLAZE (Aug. 30, 2013, 3:25 PM), http://www.theblaze.com/stories/2013/08/30/brutal-and-vicious-armed-german-policestorm-homeschooling-familys-house-and-forcibly-seize-children-report-claims/.
4 Id.
5 See Wunderlichs Regain Freedom to Leave But Vow to Stay and Fight, HOME SCH. LEGAL DEF. ASS’N, http://www.hslda.org/hs/international/Germany/201408280.asp (last visited Aug. 28, 2014).
6 For example, families in China have recently expressed serious dissatisfaction with their government-run public school systems. China maintains strict compulsory education laws, but thousands of families seek to homeschool due to rampant bullying, teacher-student abuse, and ineffective academic preparation. See, e.g., Lilian Lin, Homeschooling Becomes More Popular in China, WALL STREET JOURNAL (Aug. 27, 2013), http://blogs.wsj.com/chinarealtime/2013/08/27/homeschooling-becomes-more-popular -inchina/?mod=e2tw; Karen Lee, Legal Loophole Opens Up Chance for Homeschooling, S. CHINA MORNING POST (Jan. 7, 2014), http://www.scmp.com/news/hong-kong/article/1399191/legalloophole-opens-chance-homeschooling.
7 Dojan v. Germany, 2011-V Eur. Ct. H.R. 511, 514–16.
8 See id.
9 See Konrad v. Germany, 2007 Eur. Ct. H.R. 435, 437–38 (2006).
10 Id. at 444.
11 Romeike v. Holder, 718 F.3d 528, 530 (6th Cir. 2013).
12 Id.
13 These activities are not performed by a Christian by “obligation,” per se, but because of their direct connection to the Christian faith, which involves the development of a relationship with Jesus Christ. See Silvio Ferrari, Religion and the Development of Civil Society, 4 INT’L J. RELIGIOUS FREEDOM 29, 31–32 (2011) (noting the unique “communitarian dimension” of Christianity as a religion, a dimension enveloping both the human and his deity). See generally Romans 12:12; Hebrews 10:24–25; Malachi 3:8–10; Proverbs 22:9; Luke 22:17–20 (New International).
14 See Ferrari, supra note 13, at 32–33.
15 Michael J. Perry, Freedom of Conscience as Religious and Moral Freedom, 29 J. L. & RELIGION 124, 128 (2014).
16 Determining what constitutes religion can be a tricky feat. One scholar suggests three categories of “religion” that may help to determine whether the religious practice is legitimate for the purposes of the ideology in question: religion as belief, religion as identity, and religion as a way of life. For the purposes of this Note, a parent’s choice to homeschool their children likely falls within the third category: religion as a way of life. T. Jeremy Gunn, The Complexity of Religion and the Definition of “Religion” in International Law, 16 HARV. HUM. RTS. J. 189, 200–205 (2003) (“In this facet, religion is associated with actions, rituals, customs, and traditions that may distinguish the believer from adherents of other religions. For example, religion as a way of life may motivate people to live in monasteries or religious communities, or to observe many rituals, including praying five times a day, eschewing the eating of pork, or circumcising males.”).
17 See, e.g., American Convention on Human Rights, art. 12, Nov. 22, 1969, 1144 U.N.T.S. 143 (providing that the “[f]reedom to manifest one’s religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.”).
18 See Ferrari, supra note 13, at 29, 32–33.
19 Id. at 30 (citing ROBERT D. PUTNAM ET AL., MAKING DEMOCRACY WORK: CIVIC TRADITIONS IN MODERN ITALY 88–89 (1994)).
20 Id.
21 See id. at 30–31.
22 See id. at 31.
23 Id.
24 Robert Kunzman, Homeschooling and Religious Fundamentalism, 3 INT’L ELECTRONIC J. ELEMENTARY EDUC. 17, 19–20 (2010).
25 In his text comparing the various worldviews that influence how we view ourselves, others, and reality, James Sire explains the uniqueness of Christian theism regarding the longing for a relationship with a higher power. See JAMES W. SIRE, THE UNIVERSE NEXT DOOR 28, 32–34 (5th ed. 2009) (“How does God fulfill our ultimate longing? He does so in many ways: by being the perfect fit for our very nature, by satisfying our longing for interpersonal relationship . . . by being in his infinite love the cause of our hope for salvation.”).
26 See Ferrari, supra note 13, at 32 (noting that the communitarian dimension of Christianity “is based on a personal assent that questions the responsibility of each individual. In other words, persons are not born Christian but become Christian, and they become so not because they are members of a community, a people or a family, but because of a personal choice.”).
27 Id.
28 Id.

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† B.A. 2012, Howard Payne University; J.D. 2016, Emory University School of Law.

INTRODUCTION

Clara Zheng is from Zilin, China, the closest providence to the ChinaNorth Korea border.¹ For the past several years, her church in Zilin has been operating a secret safe house for North Korean defectors. Clara has read in the Korean news and international reports that many North Korean families risk their lives by crossing the river from North Korea to flee to China.² In North Korea, being a Christian is considered one of the gravest political crimes.³ Clara wondered how anyone could sit idly by and watch the Chinese government force countless starving North Korean families to repatriate.⁴ In Clara’s church, people talk about how the Chinese government may punish Chinese citizens who help North Koreans. Last month, despite the well-planned church operation, Clara’s friend who accompanied her on many operations was arrested and put in jail. Fearful of being punished by the Chinese government, Clara paid $15,000 to travel to the United States, hoping for a safe haven. She was hopeful because, in the past, the U.S. government has granted refugee status to couples that faced forced sterilization of their second child under China’s One-Child Policy.⁵ However, last week, an immigration judge denied Clara refugee status and ordered her to be removed from the U.S. Her lawyer told her that the court’s decision is not surprising because the U.S. does not generally grant refugee status to a Chinese citizen who aided North Korean defectors, in violation of a generally applicable law.⁶

The 108th Congress, with the assistance of President George W. Bush, acted to lend American support to the North Korean refugees by passing the North Korean Human Rights Act of 2004.⁷ The congressional act implies that the U.S. will protect, or at least endorse, groups that support North Korean human rights, including the people who feed, house, and protect North Korean defectors.⁸ Ironically, however, the U.S. government still denied refugee status to many Chinese citizens who were punished by their government for aiding North Korean defectors.⁹ The Third Circuit Court of Appeals denied refugee status to the Chinese applicants because they violated a “fairly administered [Chinese] law” and the punishment did not amount to “persecution.”¹⁰ However, is there really such a law that outlaws assistance to North Korean defectors? If there is, is this Chinese law and policy in violation of certain international human rights?How should the U.S. courts analyze “persecution” by non-democratic governments like that of China and North Korea? How do diplomatic relations between the U.S. and these two countries affect America’s open disapproval of China’s human rights violations?

The Third Circuit has held that if a law is (1) fairly administered or (2) generally applicable to all citizens, then the presumption is that the law is legitimate and may be rightfully enforced.¹¹ In other words, if a court decides that: (1) there is a Chinese law prohibiting assistance to North Korean defectors, and (2) such law is generally applicable to Chinese citizens, then no protection would be granted to the applicant, whose act was the exact behavior the North Korean Human Rights Act wished to protect.¹² As a result, the courts may deny asylum/refugee status to these Chinese citizens who then might be forced to return to China, where he/she faces the possibility of punishment, often severe, for aiding the defectors.¹³

Thus, the current analysis needs to include whether prosecution was a mere pretext for persecution. Specifically, is the punishment the applicants face upon return so severe, when compared to the crime, that the prosecution amounts to persecution? This Article suggests that China might be using criminal punishment as a pretext for persecution, and the evidence is based on disproportionately severe punishment compared to the severity of the actual crime.¹⁴ Hence, even if one assumes that a Chinese law was fairly and generally applied to all of its citizens, it is  possible that the Chinese citizens who aid North Korean defectors are persecuted through disproportionately severe punishment.¹⁵ This Article argues that the courts should first examine an applicant’s criminal history, if any, and secondly, use a hybrid approach for granting refugee status to Chinese citizens who would be prosecuted (vis-a-vis persecuted) for assisting North Korean defectors. These two approaches are of paramount importance especially when the courts are uncertain whether the Chinese penal code outlaws such activity.¹⁶

Part I of the Article begins with a brief discussion of U.S. refugee law, international human rights law, applicable Chinese law, and recent U.S. case law under Long Hao Li v. Attorney General. Part II analyzes whether criminal prosecution of Chinese citizens who assist North Korean defectors may be a mere pretext for political prosecution. Part III argues that the U.S. courts should consider a hybrid approach; a totality of the circumstances test that considers additional grounds of appeal for a refugee application.¹⁷ The hybrid approach is juxtaposed with the dominant, current approach, where refugee status is denied or granted on account of five possible grounds (race, religion, nationality, membership in a particular social group, or political opinion).¹⁸ The Article will then explain how the hybrid approach can better reflect Li’s situation and better complement the international human rights standard. Part IV applies the two approaches analyzed in Parts II and III to someone in Clara’s situation. Finally, the Article will discuss prospects for human rights implementation and legal development in China. 

I. INTERNATIONAL HUMAN RIGHTS STANDARD AND THE U.S. REFUGEE LAW

The Attorney General may grant refugee status to an alien who has suffered past persecution or has a well-founded fear of future persecution.¹⁹ The applicant must prove that he is unable or unwilling to return to the country of origin, because of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.”²⁰

A. Persecution

Even though the United Nations Handbook on Procedures and Criteria for Determining Refugee Status does not offer a definition of persecution,²¹ U.S. courts traditionally held that persecution means that there is a subjectively genuine and objectively reasonable threat to life or freedom that an ordinary person would regard as offensive (i.e., death, torture, confinement, or extreme economic deprivation).²² Also, the harm is “inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control.”²³ In regards to the objective standard of “reasonable fear,” an applicant’s testimony without corroborating evidence may be sufficient, as long as it is “credible, persuasive, and refers to specific facts.”²⁴

Still, applying a general definition of persecution is not easy for the courts, as they are tasked with the challenge of determining whether a government had a “legitimate, prosecutorial purpose” in punishing people who allegedly committed a crime.²⁵ In deciding whether a government has a legitimate ground to prosecute a person or a group, some courts have focused their analysis on whether a government has reason to believe that the person was engaged in criminal activity.²⁶ Other courts have focused on whether a government has undertaken “any formal prosecutorial measures” regarding the actions committed.²⁷ A marginally smaller number of courts have also discussed whether a government was driven by a political motive in excessively or arbitrarily punishing a person.²⁸

1 Clara Zheng’s story as portrayed in this Article is entirely fictitious. Her story serves to illustrate the typical plight of an individual who violates Chinese law in order to aid North Korean defectors. While not every story is the exactly the same, every Chinese citizen that gives assistance to a North Korean risks much in doing so, and if caught faces serious repercussions. The story of Clara Zheng is meant to personalize for readers the challenges such people encounter regularly.
2 See, e.g., Those Who Flee: North Korean Refugees, N. KOR. NOW, http://www.northkoreanow.org/the-crisis/those-who-flee-north-korean-refugees (last visited Aug. 27, 2015).
3 Human Rights Council, Rep. of the Comm’n of Inquiry on Human Rights in the Democratic People’s Republic of N. Kor. on its Twenty-Fifth Session, U.N. Doc. A/HRC/25/63, at 7–8 (Feb. 7, 2014); see also HUMAN RIGHTS WATCH, WORLD REPORT 2013: NORTH KOREA (2013), http://www.hrw.org/world-report/2013/country-chapters/north-korea [hereinafter WORLD REPORT 2013: NORTH KOREA] (reporting that many North Korean defectors flee to neighboring countries because of serious food shortages, insecurity, and fear of torture and inhumane treatment, political prisoner/labor camps, and execution for “vaguely defined offenses such as ‘crimes against the state and crimes against the people.’”).
4 See Those Who Flee, supra note 2.
5 Sun Wen Chen v. Att’y Gen., 491 F.3d 100, 108–09 (3d Cir. 2007), overruled by Guang Lin-Zheng v. Att’y Gen., 557 F.3d 147, 157 (3d Cir. 2009).
6 See, e.g., Long Hao Li v. Att’y Gen., 633 F.3d 136, 137–38 (3d Cir. 2011); but see Xun Li v. Holder, 559 F.3d 1096, 1110–11, 1113 (9th Cir. 2009).
7 North Korean Human Rights Act of 2004, Pub. L. No. 108-333, 118 Stat. 1287 (codified as amended at 22 U.S.C. § 7801–7845 (2012 & Supp. I 2013)).
8 See id. § 203, 118 Stat. at 1294 (codified as amended at 22 U.S.C. § 7833 (2012 & Supp. I 2013)).
9 Alyce S. Ahn, Note, Prosecution or Persecution: Contradictions Between U.S. Foreign Policy & the Adjudication of Asylum Claims Involving the Harboring of North Korean Refugees, 24 GEO. IMMIGR. L.J. 311, 311–12 (2010).
10 Long Hao Li., 633 F.3d at 138, 141, 147.
11 Id. at 137–38, 141.
12 See Xun Li, 559 F.3d at 1112–13. However, “a generally applicable law can provide the basis for withholding of removal, but only where the petitioner establishes a connection between the prosecution and his or her political opinion . . . .” Long Hao Li, 633 F.3d at 137.
13 See, e.g., Long Hao Li, 633 F.3d at 137–38, 143–44; see also Xun Li v. Holder, 559 F.3d at 1112 (finding clear evidence that the Chinese petitioner would be subjected to severe punishment upon return to China).
14 Long Hao Li, at 151 (Roth, J., dissenting).
15 Xun Li, 559 F.3d at 1109 (quoting Fisher v. INS, 79 F.3d 955 (9th Cir. 1996)).
16 Compare Long Hao Li, 633 F.3d at 144 (finding “that Chinese law penalizes people who assist others who cross the border illegally”), with Xun Li 559 F.3d at 1098 (stating that the court has not “discovered a Chinese law that prohibits providing assistance to foreign refugees”).
17 See Ang v. Gonzales, 430 F.3d 50, 55–56 (1st Cir. 2005).
18 See infra section I(B).
19 8 U.S.C. § 1158(b)(1)(A) (2012); 8 U.S.C. § 1101(a)(42)(A) (2012); see also 8 C.F.R.
§ 208.13(b)(1), (b)(1)(i)(A)–(B) (2013) (stating that the well-founded fear of future persecution is presumed when suffering from a past persecution is proved; however, the government can
rebut this presumption by a preponderance of evidence that the conditions in the applicant’s country have changed or that the applicant is reasonably expected to relocate to another part of country).
20 8 U.S.C. § 1158(c)(2) (2012).
21 Michel Moussalli (Director of International Protection), Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, ¶ 51, U.N. Doc. HCR/IP/4/Eng/REV.1 (1979)
[hereinafter U.N. Handbook].
22 13 Am. Jur. 3D Proof of Facts § 4 (1991) [hereinafter Proof of Facts]; see also U.N. Handbook, supra note 21, ¶ 52 (“The subjective character of fear of persecution requires an evaluation of the opinions and feelings of the person concerned. It is also in the light of such opinions and feelings that any actual or anticipated measures against him must necessarily be viewed.”).
23 Proof of Facts, supra note 22, § 4.
24 Tafreshi v. McElroy, 112 F.3d 505, No. 96-2755, 1997 WL 234670, at *2 (2d Cir. 1997) (unpublished table decision (quoting Melendez v. U.S. Dep’t of Justice, 926 F.2d 211, 215 (2d Cir. 1991); 8 C.F.R. § 208.13(a) (2013); see also Doptante v. INS., 198 F.3d 253, No.
97-71408, 1999 WL 801509, at *1 (9th Cir. 1999) (unpublished table decision); Velis v. INS, 47 F.3d 1178, No. 94-9526, 1995 WL 66536, at *3–4 (10th Cir. 1995) (unpublished table decision).
25 Proof of Facts, supra note 22.
26 Ramirez Rivas v. INS, 899 F.2d 864 (9th Cir. 1990), vacated, 502 U.S. 1025 (1992) (mem.).
27 Blanco-Lopez v. INS, 858 F.2d 531, 534 (9th Cir. 1988) (holding that a government’s prosecution is “legitimate” if it has undertaken “formal prosecutorial measures”), superseded by statute, Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, as recognized in Parussimova v. Mukasey, 555 F.3d 734, 739–40 (9th Cir. 2008).
28 See, e.g., Ramirez Rivas, 899 F.2d at 868 (citing U.N. Handbook, supra note 21, ¶ 85).

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† Ra Hee Jeon was born and raised in South Korea. She graduated cum laude from George Washington University in 2011, and she received her Juris Doctorate degree from Regent University School of Law in 2015. She currently practices immigration law in Virginia Beach, Virginia.