Child marriage and sexularism in Sweden: Constructing the nation racializing migrants

Introduction

There are few questions enjoying such wide national consensus in Sweden—from left to right, from the feminist movement to the men’s movement, from anti-racist to fascist organizations—like the need to legislate against “child marriage.” Yet, a close analysis of what the legislative provisions against “child marriage,” passed by the Swedish Parliament, actually do reveals that the main juridical effect of these provisions has been to restrict family reunification migration.

This article investigates the discourse on child marriage as reflected in the entire corpus of official investigations (SOU) and government bills (Prop.) proposing legislative measures against child marriage in Sweden since the first motions on the issue were drafted in 2001. It analyzes them as instances of sexularism: a form of secularism where the secular is construed in relation to sexual emancipation and gender equality rather than in relation to politics or the public sphere (Scott 2009). It thereafter connects the effects of legislation against child marriage on the right to family reunification and to the process of racialization of certain migrant populations and religious minorities in Sweden.

Due to the political and emotional volatility of the issue, it seems necessary to state that this is a historically situated study of legislation against child marriage in Sweden, not a defense of the various phenomena gathered under the concept. In this article, “child marriage” exclusively refers to the area of application of the term in Swedish law: consented marriages (not involving violence or force) between youths 15–17 years of age.

The article is divided into six sections: the first explains its conceptual framework; the second describes the official investigations and propositions on child marriage chronologically; the third analyzes how these investigations and propositions construct the categories of “other girls,” “the child,” and the “free individual”; the fourth analyses the effects of the legislation on the right to family reunification; and the fifth analyzes the racialization of others in relation to state claims of jurisdiction over realms formerly seen as private or pertaining to religious freedom. The final section summarizes the findings and connects them to the governmental technology of sexularism and the coloniality of power that structures migration regimes.

Sexularism, coloniality, and racialization

The colonial genealogy of contemporary formations of the secular has been thoroughly investigated in studies by critical researchers including Talal Asad (2003), Tomoko Masuzawa (2005, 301‐302), Gayatri Spivak (1999, 232), Kumari Jayawardena (2016, 47), Joseph Massad (2015, 183), and Joan Scott (2018, 10, 163). Importantly, key to ideas of universal secularism is an imagined opposition between Western subjectivities as built on “free faith” and the culturally determined religious fanaticism of the other (Masuzawa 2005, 43).

As Talal Asad (1992, 340) points out, a consequence of the “West’s imperial adventure” was that political, economic, and cultural categories characteristic of modern power came to mold global life forms. Secularism as “progress” was introduced as a form of governmentality capable of producing consent, and even passion, among segments of the population, both in the colonies and in the colonial centers (Castro-Gómez 2005; Escobar 1995). Resistance to colonialism could take both the form of “religious revival” and of embracing secularist ideas (Jayawardena 2016, 25‐27). Asad notes that gender equality reforms define improvement in relation to the dominant practices of the state, selfhood, sexuality, and the family. Therefore, even legislations against evils that may seem universally valid, such as legislation against child marriage, should be studied in relation to the power formation which makes them plausible:

Legislation seeking to abolish child-marriage should be seen by the anthropologist not as the outcome of virtuous agents determined to eradicate vicious practices but as one condition among others for creating subjects who can respond to a new order of virtue and vice. (Asad 1992, 342)

If we trace sexularism as a new order of virtue and vice in Sweden, legislation against child marriage will appear not only as the outcome of virtuous agents eradicating vicious practices, but also as a condition for constructing Sweden as a nation of secular values and gender equality. Sweden is construed as the most secular nation in the world and a leading feminist state combating honor-related violence and oppression (SOU 2018:69, 70).

The idea that there are secular and religious countries, regions, and peoples relies on the colonial imagining that there is a stable and universal distinction between the religious and the secular and that it is meaningful to locate different “peoples” along such a spectrum. From within this kind of world-imagining, Sweden is ascribed a position as extremely secular, making it plausible to formulate research questions as to the “impact of religion” as a “migration” issue on Swedish society (Framtidsstudier 2015). ¹ Since the 1990s, questions of Swedish secularity have been invoked in discussions about migrants and integration. Questions asked are whether it is possible for culturally distant “migrants” (often born in Sweden) to “integrate” into Swedish society? Is their religion a threat to Swedish democracy? At the turn of the millennium, the concept of “honor violence” emerged on the Swedish political scene. According to the dominant historical narrative it was a response to the murder of Fadime Sahindal in 2002. Sahindal is considered an exemplary victim of honor violence, killed by her father because of openly displaying a non-marital sexual relationship with a partner of her own choice. While the historical accuracy of this account is contested, its political importance is undeniable. It marks a sexularist turn in Swedish policymaking.

Sexularism, a term coined by historian Joan Wallach Scott (2009), refers to a form of secularism that constructs the secular in relation to the sphere of sexuality rather than in relation to the political sphere. Sexular discourses produce differences between secular subjects and non-secular others in the areas of sex and marriage. Sexularism constructs these areas as privileged zones of improvement, differentiating between desirable subjects who in their sex and marriage practices embrace the individual values of the secular state (sexual emancipation, romantic love, and gender equality) and undesirable others who deviate from these norms (virginity ideals, arranged marriages, and fixed gender roles).

As the Swedish political theorist Maria Carbin (2010) has pointed out, the emergence of “honor violence” as a political concept is a global phenomenon parallel to the “war on terror.” National narratives of “awakening” to the reality of “honor violence” taking place in “our country” emerged simultaneously in many Western countries, often taking a murder of a minority girl as a point of departure. While violence perpetrated in the name of honor and murder of teenage girls by relatives existed and exists independently of the emergence of the political discourse on “honor violence,” the concept itself and the discourse to which it belongs determines what kind of remedies it is possible to formulate and get support for (Carbin 2008).

The concept of “honor violence” replaced the positive connotations of ethnic diversity in liberal multiculturalism and the feminist critique of Swedish patriarchy as a “gender power order” with the idea that migrant “others” constituted a threat to Swedish gender equality. In parliamentary debates calling for legislation against child marriage, politicians suggested that lack of legislation against honor violence was a “betrayal” of female “victims of honor culture” who did not enjoy the same rights and freedoms that Swedish women had access to (Riksdagsprotokoll 2001, 151). The term “patriarchal” became ethnically and culturally coded and presumed as a hegemonic phenomenon within certain ethnic, religious, and migrant groups, demonstrating that “integration” had “failed” (Alinia 2011).

Immigrants of “distant cultures” were construed as lacking the capacity to respect Swedish values and legislation, especially when it came to questions of gender equality and sexual freedom. Sociologist Minoo Alinia shows that homogenizing statements about “immigrant girls” had already become common in Swedish debate before the emergence of honor discourse. Multiculturalism had laid the ground for this by culturalizing social difference. Immigrant women symbolized the inferiority of other nations and women’s lives became an arsenal for struggles about national identity (Alinia 2011).

Scott’s work shows how sexularism in France and the US has a clear Islamophobic dimension. Interestingly, in Swedish official documents, honor violence is connected to Islam and Muslims by negation rather than affirmation. A recurrent claim is that honor violence does “not only” occur in Muslim communities, but in other religious communities as well. The anti-Muslim dimension of Swedish sexularism is hidden under epithets such as “traditional,” “medieval,” “patriarchal,” and “culturally distant.”

Important studies of sexularism are concerned with femonationalism, the association between white nationalism and white feminism (Farris 2012). Often undertaken by feminist and gender scholars, studies of sexularism have developed as an internal critique of feminist assumptions and political alliances (Scott 2018; Giorgi 2016, 51; Lépinard 2020, 45-46). Joan Wallach Scott (2018, 28) traces one of the genealogical lines of sexularism to Western ideas on female sexual emancipation as an indicator of gender equality and of individual freedom as a universal human right to discursive opposition to Soviet social equality policies. Sexularism operates at a visceral level, affecting the ways secular subjects think about freedom in their own lives and is a powerful discourse of nationalist identification. Sexuality becomes the site of the internalization of an ideal, homogeneous, national identity, while migration policy is a transfer point where secular sexuality, love, and marriage norms are naturalized as state policy (Verkaaik and Spronk 2011, 85).

In the global order of coloniality, individual possibilities are to a great extent determined by a person’s country of birth or that of her parents (Quijano 2000). In the age of migration, coloniality has been increasingly detached from “place” and attached instead to “culture” and “tradition,” both categories being linked not only to the hierarchical order between the secular and the religious but also to a racialized ordering of “religions” (Castles and Miller 2009). In this article, I use the concept of coloniality to denote the persistence of colonial discourses in contemporary global power structures—including gendered hierarchies between Europeans and non-Europeans (Lugones 2008). I use racialization to denote the process of creating racialized groups around ideas of inherited difference (for instance, “Swedes,” “migrants,” and “Muslims”) in social contexts where racism operates as a principle of unequal distribution of rights, resources, and possibilities (Meer 2013; Foucault 2003, 254‐258).

Legislation against child marriage in Sweden

Legislative measures against “child marriage” emerged in Sweden around the turn of the millennium. Until then, a handful of underage youths per year applied for exemption from the age requirement, citing pregnancy, or religious or cultural reasons. Exemption was obtained by submitting an application to local authorities which was rarely rejected. Many of the applicants were from Christian free churches, or they were national minorities like the Roma or Sami. Things changed dramatically in 2001 when in short sequence all parties in the Swedish Riksdag filed motions on the issue of underage and forced marriages, and the parliament decided to investigate the possibility to change the age requirements and the requirements for recognition of foreign marriages (Lagutskottet 2001).

In December 2005, an official inquiry on human trafficking and child marriage was commissioned by the government with Judge of Appeal Agneta Lindelöf appointed Special Investigator. The inquiry’s report Human Trafficking and Child Marriage was published in 2008 (SOU 2008:41). ² The inquiry found that forced marriage was already criminal by law and that no legally valid marriages of persons under 15 years of age took place under Swedish jurisdiction. Yet, it proposed that “permitting child marriage” (in this inquiry, persons under 16) be criminalized with a penalty of imprisonment for up to 2 years (SOU 2008:41, 24). The proposed criminalization was not passed, but the fusion of human trafficking and child marriage was essential for the framing of successive measures against child marriage. It established that in legislation against child marriage, the children’s own will should not have any legal significance because child marriage should be understood as a crime against fundamental human rights which no individual could agree to relinquish. On the same grounds, it was a crime for which Sweden could claim jurisdiction over other states.

In 2009, The Swedish National Board for Youth Affairs published the report Married against One’s Will (Gift mot sin vilja), synthesizing existing knowledge and making a contribution with an “additional analysis” of a 2007 survey on young adult exposure to honor-related violence and intimidation. The study found that child marriage was a problem of differences in cultural values (Ungdomsstyrelsen 2009). It proposed that youths’ need of protection by Swedish authorities against abusive families be met by legislative measures on areas formerly considered private, such as the right of parents to raise their children according to their beliefs (Ungdomsstyrelsen 2009, 221).

In 2010, Supreme Court Justice Göran Lambertz was appointed Special Investigator to further study forced marriage and child marriage and to propose appropriate legal provisions. The inquiry resulted in the 600-page‐long report Increased Protection against Forced Marriages and Child Marriages published in 2012 (SOU 2012:35). Leaning heavily on the analysis of the National Board for Youth Affairs, the report proposed to eliminate the possibility of exemption from the age requirement for Swedish underage youths. Child marriage was construed as a non-Swedish cultural problem, and Lambertz coined a new ethnically defined legal category: “informal marriages.” They were distinguished from “informal cohabitation” (practiced by the majority population) by allegedly following “other group norms.” The inquiry proposed that “informal marriages” be included in the legislation against child marriage.

In March 2017, Justice of the Supreme Court (now Chancellor of Justice) Mari Heidenborg was appointed Special Investigator for a new inquiry on legislative provisions against “child marriage, forced marriage and crimes with an honor motive” (SOU 2017:96, 4). The part on child marriage was presented in the report Extended Impediments to Recognition of Foreign Marriages Entered into Abroad in December 2017 (SOU 2017:96). The inquiry points out that it is possible to marry before 18 in many countries, including Nordic and European ones. Former inquiries had dismissed the proposition to refuse recognition of foreign marriages entered according to norms other than Swedish because the contracting parties could not reasonably be expected to take Swedish norms into consideration when marrying and because it would have serious consequences for individuals. Heidenborg weighed this against the principle that “a general acceptance of marriages with foreign minors would be in contradiction to fundamental social values regarding children’s and youth’s right to an autonomous development” (Prop. 1983/84:144, 75). The inquiry proposed an impediment to recognition of foreign child marriages applicable to couples where one or both of the spouses were under 18 at the time of arrival in Sweden (SOU 2017:96).

In August 2018, the government delivered the proposition Prohibition of Recognition of Foreign Child Marriages proposing that no child marriage should be recognized, regardless of the age of the spouses at the time of arrival in Sweden, stating that the effects of child marriage do not stop when its victims become adults (Prop. 2017/18:288). The Parliament passed the proposition as law on January 1, 2019, stating that child marriage is a “harmful custom” (skadlig sedvänja) and legislation against child marriage is a measure aimed to attain the United Nations’ Global Goals. ³

In August 2018, Mari Heidenborg presented the final report of the Inquiry Increased Protection against Honor-related crimes. The Inquiry proposed a criminalization of child marriage including formal and informal marriages involving parties under 18 with a penalty of imprisonment for up to 4 years (SOU 2017:96, 27). It also proposed a ban on leaving the country for children considered at risk of being taken abroad to enter a marriage and more severe penalties (straffskärpningsgrund) for criminal offences motivated by honor. The government’s subsequent proposition Increased Protection against Honor Crimes replicated the inquiry’s proposal with only slight changes. The proposition was passed on May 27, 2020, by the parliament and its proposals became Swedish law on July 1, 2020. Yet, the new legislation was soon deemed insufficient, and new provisions have been called for (Marttinen 2020; Forsell 2020).

While there is a strong political consensus on the question of child marriage, it is still used as a political weapon between opposing parties. As soon as a government proposition found it not advisable to extend a prohibition of recognition of child marriages to those marriages already registered, opposition politicians demanded that the prohibition of recognition be applied retroactively, accusing the government of passivity (Prop. 2017/18:288, 32; Eskilandersson 2019). Legal provisions against child marriage seem to deliver symbolic political value without being limited by material considerations or by significant political disagreement. The legislative texts show an involvement in the construction of Sweden as a leading secular country, confirming the accuracy of the concept of sexularism as a tool of critically understanding this kind of phenomena.

The youth of child marriage

The new Swedish legislation against “child marriage” could only target marriages between youths 15–17 years old, as previous legislation already had outlawed marriages and criminalized sexual intercourse below the age of 15. “Child” in this context has thus a technically exact meaning, the age of majority being 18. At the same time, by replacing earlier terms like “early marriages” or “teenage marriages,” the concept of “child marriage” associates it with pre-pubertal marriages, making it emotionally outrageous and framing it as incomprehensible and alien to the nation. “Child marriage” is easier to delink from the long-standing and until recently unproblematized, albeit relatively rare, practice of youth marriage within the native population than concepts such as early marriage, youth marriage or teenage marriage. Thus, “child marriage” is more apt to be construed as an “integration” or “migration problem.”

The possibility to grant legal exemption from the age requirement for youths above 15 years old had been an accommodation to national religious and cultural diversity to individual differences in maturity and to de facto early family formation. With the introduction of the discourse of child marriage as a foreign practice, this frame was progressively abandoned. The fusion of “child marriage” with “forced marriage,” in the first government bills and official investigations on the issue, was a decisive innovation for future interpretations of the phenomenon (Prop. 2003/04:48, 1; SOU 2008:41). However, the concept “child marriage” was not yet fully established, and “early marriage” and “teenage marriages” were still used in the same texts. The solidification of the concept of child marriage is connected to the emergence of the political category “girls of migrant background.”

Restricting family reunification

There are today about 650 million people of the world’s population who were married before the age of 18. About 400 million of them were aged 20 to 49 in 2019 (UNICEF 2019). As of January 1, 2019, no marriage in which one or both parties were under 18 at the time of the marriage is recognized as valid by any Swedish authority, independent of the age of the spouses at the time of arrival in Sweden. If a marriage is not valid, it is no longer covered by the right to family reunification.

For couples separated by war and persecution, limited economic resources, or migration regimes, the choice to remarry as adults is only “free” in theory. The Swedish legislation has the effect of excluding migrants from the right to family reunification. This effect may have not been subjectively intended, but it contributes to solve a long-standing problem in Swedish governance.

The policy of regulated immigration was introduced in Sweden in 1968 with the rationale of protecting Swedish workers’ jobs (SOU 1967:18; 1982:49, 26‐27). Since then, the right to family reunification has appeared as an obstacle for this policy to work. Family reunification has composed a high percentage of all immigration, but it has not allowed for new regulations aiming directly to stop it, being a right internationally recognized as absolute. When non-Nordic labor migration was reduced by new regulations in the early 1970s, family reunification migration continued unimpeded. The categories of kinship ties that counted as “family” were reduced, and foreign partners were given only temporary residence permits during the first 2 years, in order to restrict this kind of migration. Couples underwent a “seriousness examination” upon which the migration authorities determined whether a relation was real or not, giving liberty to Swedish authorities to grant or deny permits on an individual basis.

The EU Council’s directive on the right to family reunification from October 2003 established a statutory right to family reunification which exempted legally married couples from “seriousness examination” and accorded them an automatic right to family reunification (Groenendijk et al. 2007). The directive proposed special measures in order to protect refugees (Directive 2003/86/EC, 12). However, the directive left some possibilities for member states to restrict its application: it was permissible to require the “sponsor” and his/her spouse to be up to 21 years old to be able to apply, to have a certain level of economic resources, and appropriate accommodations. The Directive was not applicable to persons applying for refugee status before a final decision was made nor to persons authorized to reside in a member state on the basis of temporary protection (Directive 2003/86/EC, 13‐16).

Sweden introduced a requirement of economic responsibility for permits on the grounds of family reunification in 2010 (Prop. 2015/16:174, 35‐36). The measure of requiring a higher minimum age than 18 for family reunification was discussed and rejected in 2012 on the grounds that it would also hinder “adults’ right to marry” (SOU 2012:35, 400). This same measure was however introduced in 2015 as part of a controversial package of “temporary regulations” of residence permits (Prop. 2015/16:174). Their aim was to forcibly reduce the number of asylum seekers to give Sweden “breathing space” (andrum) (Prop. 2015/16:174, 21). According to the temporary regulation, relatives of asylum seekers were not to be granted family reunification permits, while relatives of immigrants already holding permanent residence permits would only be granted a family reunification permit for partners older than 21. The temporary regulations were made permanent in June 2021. Parallel to the temporary (now permanent) regulation of migration, a permanent “impediment to recognition” of legally contracted marriages was made effective through the legislation against child marriage.

The Council of Legislation (Lagrådet) questioned the juridical soundness of the proposal before it was implemented, arguing that such a regulation did not protect any actual children, which was the stated aim of the proposed legislation. The Council of Legislation stated that a prohibition of recognition of marriage has no effect on children lacking connection to Sweden at the time of their marriage. It seems unreasonable to expect that persons who, at the time they marry, do not have any intention to leave their country would take into consideration the Swedish legislation and, because of it, refrain from marrying before they reach the age of 18 (Lagrådet 2018, 2). Nor does the proposed legislation contribute to maintaining the prohibition to marry before the age of 18 already in force in Sweden. The Council rejected the proposal stating that besides not being adequate to fulfill its purpose, the proposed legislation infringed upon the principle of predictability of the law, denied adults the right to family life protected by the European Convention on the Protection of Human Rights and Fundamental Freedoms, and led to complex legal consequences for couples who were children when they married. It also deterred such couples from seeking protection in Sweden, making the measure incongruent with the aim of protecting persons who married as children from the attributed pernicious effects of such marriages (Lagrådet 2018, 5).

Racializing the other and expanding the secular

The use of the word “child” in the Swedish legislation against child marriage, and the surreptitious conflation between forced marriage and child marriage in official texts and public debate, mobilized emotions of outrage as well as national pride in Sweden’s secular values. The perpetrator was construed as “the other”: the other father, the other parents, and the other religious and cultural groups. Sometimes this other was imagined as acting from outside Swedish territory, from the “countries of origin” of migrant populations, or other places around the globe, where clan heads or religious authorities were imagined to act through transnational networks exercising pressure on Swedish citizens or legal residents to act in accordance to the norms of a transnational community.

From a juridical point of view, it was of the essence that the perpetrator, as construed by the law, was someone who could be brought into the state’s jurisdiction. This consideration rules out the adult spouse because it often is a foreign citizen without previous connection to Sweden, technically out of reach for Swedish authorities. The criminalization of child marriage rests on the assumption that child marriage is forced marriage, with the parents as the likely perpetrators (SOU 2017:96, 26)—a discourse that runs counter to the longer assumption in the Swedish history of marriage law, where the parents have been assumed to tend to object to unfavorable marriages. The procedures handling applications for exemption required, for example, hearing the opinion of the parents as a source of knowledge about the maturity of the youth wanting to marry and on the prudence of the union. As possible perpetrators of child marriage, the parents are construed as agents of patriarchal values, beyond reason, and harmful to their children and to society at large.

The need to consider the possibility of underage youths own wish to marry is precluded by making their consent irrelevant. The underage youth is, from the legal perspective, incapable of consenting. As it is irrelevant whether the underage youth consents to entering the marriage, the law does not require that the perpetrator has exerted coercion or exploited the child’s vulnerability for assessing responsibility. It is sufficient that the perpetrator “induces” or “permits” the child to enter a marriage. However, since it is no longer possible to enter into legally valid underage marriages in Sweden and no foreign child marriages are recognized, the applicability of the provision primarily concerns “informal marriages” (SOU 2017:96, 27). This leads to the problem of separating the cohabitation between teenagers which is a common practice within the majority population from the “harmful customs” of other groups.

Lambertz defines “informal marriages” as a form of cohabitation that follows “other groups’ norms.” The assessment of a parent’s responsibility for permitting “child marriage” requires identifying the cohabitation in question as involving “others” (by their appearance? their religion? their name? their or their parents’ country of birth?) supposedly following “foreign” norms. Despite being formulated as specifically targeting “other” ethnic groups, it is not perceived as contrary to the requirement that Swedish legislation be formulated in non-discriminatory terms. The racializing effects of this construction are rendered legitimate in face of the law’s emotional and symbolic appeal. Heidenborg ponders that legislation against informal marriages gives rise to the question of contradiction because current legislation allows cohabitation for children older than fifteen with the permission of the parents. Thus, she suggests, it could appear as contradictory that a parent can legally permit a cohabitation but be punished if he or she participates at a religious wedding for the couple. The answer she provides to this question is that a marriage is something other than a cohabitation because of its legal consequences (rättsverkningar) (SOU 2017:96, 122‐123). An intriguing answer, considering that informal marriages have no other legal consequences than informal cohabitation.

The provision is, however, logical if interpreted from the perspective of the jurisdictional claims of the secular state. Implicit in the construction of the perpetrator is that it is a subject enforcing an alternative rights system to that of the Swedish state. Choices usually protected as private in the sphere of civil rights become, in this light, threats to state jurisdiction. In the process of asserting state jurisdiction over “other group’s norms,” ethnically “different” cohabitation is recoded as “marriage” and marriage is recoded from an institution protecting the rights of spouses (especially of the most vulnerable partner) to a kind of exposure. Lambertz explains this logic by taking up the cohabitation practices of a national minority. Some Romani people, he explains, think that marriage can arise from partners living together. From the perspective of the Swedish state, such relationships are merely cohabitation, but they are regarded as marriages in their social environments and have effects other than cohabitation within the majority culture because an informal norm system steps in and regulates it (SOU 2012:35, 82). First after naming the Romani, he names “religious ceremonies”—referring to Muslim marriage ceremonies—blessing a union without legal effects, but being perceived as marriages by the community. He writes that informal marriages such as these could be seen as a private phenomenon that society should not interfere with. However, informal marriages can make those who enter into them as “exposed” (utsatta) as if formally married (SOU 2012:35, 82).

Recurrently, the legislation against child marriage brings up questions of parental authority, religious freedom, and parents’ rights to raise their children according to their beliefs, faith, and culture. These rights are weighed against children’s rights to be protected by the state, legitimating legislative measures to intervene by force (Ungdomsstyrelsen 2009, 316; SOU 2012:35, 91-93). In particular, the classification of norms about virginity, sexuality, honor, and shame as private, and thus beyond the legitimate reach of the state, schools, social authorities, and the police, is contested. Social authorities should intervene even when no violence has been committed with the focus on defending children’s individual rights (SOU 2012:35, 516). Lambertz makes an argument from the Board of Youth Affairs, stating that society should help youths of foreign background to enjoy the same freedoms and rights as Swedish youths instead of helping them be a “little less oppressed in their families” (SOU 2012:35, 509). The “honor context” requires, he writes, “special considerations” (SOU 2012:35, 423).

In cases of child marriage, where, by definition, the child consents to the marriage, it has usually proved that no pressure punishable by law has been exercised. To solve these “probative difficulties,” the notion of “permitting” is proposed. Permitting includes, for example, giving consent to or being present at a marriage ceremony. A penalty of imprisonment for up to 4 years was proposed (SOU 2017:96, 27). Permitting is thus considered a more serious offense than rape and violence against women (which can give a maximum penalty of 3 and 2 years, respectively).

This may be due to the value as “signal” ascribed to legislation against child marriage (SOU 2008:41, 149; Prop. 2017/18:288). The law is meant to be “morally instructive” (moralbildande) for “people in Sweden who come from other countries and cultures” (SOU 2012:35, 288). Child marriage is seen as threatening Swedish society’s principles of gender equality and women’s right to bodily integrity (Ungdomsstyrelsen 2009, 221). Swedish norms are alleged to differ from other group norms on issues of sexual morals and gender equality due to Sweden’s secularity. Child marriage is interpreted in this context as a form of collective opposition to the authority of the secular state.

With reference to the World Value Survey, Sweden is described as an extremely secularized society (Ungdomsstyrelsen 2009, 315). The Board for Youth Affairs describes Swedish majority culture as “late modern post-materialistic” where adulthood and freedom are no longer associated with such traditional transitions as marrying, moving out of the parents’ house, or reaching the age of majority. Instead, adulthood is associated with personal development, in “finding oneself,” “knowing what one wants,” and “making one’s own decisions” (Ungdomsstyrelsen 2009, 184). Swedish sexual culture is presented as unique and a source for “cultural clashes” and religious minority groups are said to come into collision with the Swedish liberalism on sexual matters. Social milieus where child marriages occur are, according to the Board, governed by values contrary to “Western values.” By contrast, the Swedish norm is “democratic upbringing” (demokratisk uppfostran) (Ungdomsstyrelsen 2009, 30). Questions of right and wrong, good and bad, and permitted and forbidden are not fixed but defined as a result of dialogue and discussion between parents and children. The majority of the young in Sweden are raised to “become autonomous” and are given progressively increasing freedom as they become older (Ungdomsstyrelsen 2009, 203).

According to the Board, early marriages can be a strategy from minority groups to protect themselves from influence from the majority culture. If this is allowed, it will lead to families exercising the legitimate jurisdiction in matters of marriage and family law, instead of the state, as happens in some other secular countries, such as Israel, India, and Egypt where the legislation can be different for different citizens according to their religious faith. The Board argues that this is already happening in Sweden when religiously entered marriages are regulated by religious norms instead of by secular norms.

In order for legislation against child marriage to protect individual rights, Lambertz argues, the law must apply to areas formerly seen as private (SOU 2012:35, 82‐84). The state must be able to intervene with coercive measures within families where there are conflicts of interest between youths and their guardians on issues such as gender, sexuality, and marriage. This echoes the position of the Board for Youth Affairs that parents should be seen as “trustees” for the child, whose mission ends as soon as the child is able to take responsibility for her or himself. This is, in particular, desirable in families where limitations, threats, and violence in order to maintain norms of virginity and honor are frequent (Ungdomsstyrelsen 2009, 223).

In Prohibition of Recognition of Foreign Child Marriages, the government extends the intended scope of the Swedish jurisdiction to the international scene. Even if Swedish legislation cannot impede the occurrence of child marriage in other countries, it can make Sweden a “role model” (förebild). By being exemplarily restrictive, Sweden can gain a place among the leading countries in the struggle towards global goals (Prop. 2017/18:288, 11). The government dismissed the warnings from juridical experts that the new legislation seemed to be in conflict with the provisions of the European Convention on the Protection of Human Rights and Fundamental Freedoms protecting family life, with the argument that the development of legislation against child marriage in the European Union is going in a direction approaching the Swedish position and Swedish legislation. The government points out that the European parliament has taken its first steps towards a new EU-strategy to combat early marriages, a process in which the Swedish state is actively participating (Prop. 2017/18:288, 9).

Conclusion

The Swedish legislation against child marriage appears as a textbook example of sexularism. It constructs the secular and the non-secular in relation to differences in sexual morals, disrupting earlier divisions between the private and the political, and produces a Swedish national identity as gender equal and modern, while constructing its others as oppressive and patriarchal. As a governmental device, legislation against child marriage contributes to create desirability and favorable conditions for the life forms of “free individuals,” deliberately seeking to transform subjects from one kind of person to another: from submissive members of “traditional” communities to free modern citizens, regulated by modern norms of romantic love and sexual freedom.

The Swedish legislation against child marriage seems to follow a pattern that Talal Asad observed in the 1990s in relation to modernization campaigns outside Europe:

Western-inspired legislation outlawing child-marriage is therefore part of a complex, ambiguous movement that is not fully described as the self-evident elimination of inequality and exploitation. Such legislation works toward the forcible construction of new, and contradictory, social relations that define the autonomous (and suspicious) modern self. (Asad 1992, 344)

From a sexularist perspective, religious and cultural communities that exercise authority within the territory of the secular state are a potential threat to its authority and jurisdiction but vulnerable to the sexual desire of the young. A sexular regime tries to define and control the field of power through sexular technologies of governance, working in the name of and through sexual freedom and romantic love. Legislation against child marriage works simultaneously at a symbolic and a practical level as a technology of national “bordering” (Scott 2015). Entitlement to rights and resources is attached to inclusion or exclusion from different regimes of national citizenship which conditions belonging to adherence to modern sexular culture (Butler 2008).

The right to family reunification has been one of the few opportunities available to people on the wrong side of the colonial border, to escape danger, to protect family members, or to help them achieve economic security or social advancement (Palriwala and Uberoi 2008; Williams 2010; Groes and Fernandez 2018; Grabska, de Regt, and Del Franco 2019; Charsley et al. 2020). Refugee marriages, including underage marriages, are typically contracted under conditions of social instability in societies that are broken down, and may represent efforts by individuals and groups to achieve security and protection for themselves or to rebuild displaced or disrupted communities (Williams 2010, 13‐14).

The refusal to recognize foreign child marriages even when the spouses are adults, retrospectively superimposing Swedish national jurisdiction over that of other countries, is only possible to enforce thanks to the coloniality of international legal regimes. It is likely to disproportionally affect migration possibilities for people from Africa and Asia. In the case of underage refugees from war zones like Syria and Iraq—where early marriage is not a national “harmful custom” in peacetime, but a survival strategy among refugees—it can obstruct their access to asylum (Menz 2016; Wijffelman 2017).

Many asylum seekers in Sweden are underage youths unsuccessfully appealing for special protection as children—a status that the Swedish state has developed ingenious methods not to grant when it comes to acknowledging entitlement to special rights. Some of them, with no prior connection to Sweden, have been married according to foreign law (Migrationsverket 2016). In these cases, the state turns around and applies the status of children strictly. The need to prohibit recognition of child marriages was explicitly motivated by the increasing numbers of asylum-seeking minors already married when they arrived in Sweden. Prohibiting recognition of all foreign child marriages was formulated with the intent to fulfill the Children’s convention requirement of no discrimination, ensuring the same protection against child marriage for all children in its jurisdiction (Prop. 2017/18:288, 13). However, when this protection means denying entry for children living under war conditions, it goes against the arguably more important right to life and security also required by the UN Convention on the Rights of the Child. It seems that legislating against child marriage in the name of protecting the individual freedom and gender equality of migrants is a “structure erected to uphold the interests of the country of settlement above the interests of migrants” (Williams 2010, 15).

If we are to understand the impetus of Swedish legislative activity against child marriage, it is wise to follow Derrida’s advice and seek its source in what it affirms rather than in what it prohibits (Derrida 1990, 929). Swedish legislation against child marriage affirms nationalist identification with sexual emancipation, individual autonomy, and gender equality and the promise of a leading role for Sweden in global development. As a device restricting migration, it reproduces global coloniality by racializing sexual and moral norms, using them as principles of distribution of rights and resources.