Asylum and Homeschoolers

Jonathan posted earlier today about Romeike v. Holder (6th Cir. May 14, 2013), which reject German homeschoolers’ asylum claim. The opinion is quite readable and persuasive, and I recommend it to those interested in the subject. But here’s my general thinking (reprised from 2010 post on the original immigration judge decision in the case), and stressing that I’m not an expert on asylum law:

It’s not clear that homeschooling (as opposed to private schooling) is constitutionally protected in the U.S. There appears to be no such general constitutional right, though there might be such a right under the Free Exercise Clause, at least as to children 14 and above, if the parents feel a religious obligation not to send their children to any school, private or public.

But even if the U.S. Constitution is read as securing such a right, can that be enough to secure asylum to everyone who wants to exercise the right, and can’t do so in their home country? Everyone who wants to own a handgun, but can’t do so under his or her home country’s law? Everyone who wants the ability to have an abortion should she get pregnant, but is not allowed to do so under her home country’s law? If the U.S. Constitution is read as recognizing a right to same-sex marriage, everyone who wants the ability to live in a recognized same-sex marriage, but is not allowed to do so under his or her home country’s law? That seems like an odd way of rationing the right to come to the U.S. (whatever one may think more generally about how open or closed our borders ought to be).

I should note that my family and I did come here as refugees from the Soviet Union. But whether or not that policy was sound (and the fact that it helped me, and that I’m grateful that it did, doesn’t tell us that much about whether it was sound), it seems to me that asylum from a country where a vast range of human rights is pervasively denied is quite different from asylum where the right at stake is solely the right to home-school, important as that is for many people.