Is the Supreme Court’s conservative majority conspiring to undermine the right to same-sex marriage or other constitutional protections? The liberal justices seem to think so, and issued an ominous warning to that effect in a dissent Friday as part of an otherwise obscure immigration case.
The case, Department of State against Muñoz, involves Sandra Muñoz, a California woman and U.S. citizen, whose husband, Luis Asencio-Cordero, a citizen of El Salvador, wanted to enter the United States to live with his wife and son, also a U.S. citizen. An officer at the United States consulate in San Salvador denied him entry and discovered that Asencio-Cordero was a member of the MS-13 gang, in part because of his religious tattoos. Asencio-Cordero denied being a gang member.
Under US immigration law, non-citizens do not have the right to challenge visa denials in court. But Muñoz asserted that the refusal to give her husband a visa violated what she said was her fundamental right to live with her spouse in the United States, part of the protection of the right to marriage that the court said is guaranteed by the Constitution.
The court rejected that argument. “A citizen has no fundamental liberty interest in having his noncitizen spouse admitted to the country,” Judge Amy Coney Barrett said. wrote for the majority.
That right, he stated, is not “deeply rooted in the history and traditions of this nation,” citing a 1997 case that has become the touchstone for determining (or, in the case of abortion, limiting) the scope of constitutional rights not specifically described in the text.
Here you can guess the reason for the concern of the liberal judges. The first sentence of the dissent, written by Justice Sonia Sotomayor, comes from Obergefell v. Hodges, the 2015 case establishing the right of same-sex couples to marry. That was a 5-4 decision from a very different court; two members of the majority, Justices Anthony M. Kennedy and Ruth Bader Ginsburg, have been replaced by Justices Brett M. Kavanaugh and Barrett.
The majority could have resolved this case, Sotomayor argued, simply by stating that Muñoz had received all due process: an explanation from authorities as to why he was denied a visa. (Justice Neil M. Gorsuch made the same observation, agreeing with the result but not joining the majority opinion.)
“That could and should have been the end,” Sotomayor said. “Instead, most are swinging for the fences.” His approach to the constitutional right to marriage, he warned, is inconsistent with the understanding he outlined in Obergefell – and his guarantees in Dobbs v. Jackson Women’s Health Organizationits 2022 decision that eliminated constitutional protection of the right to abortion, which other precedents were not at risk.
The majority in Dobbs denied any interest in reviewing other decisions, including Obergefell, based on unenumerated rights. (Justice Clarence Thomas would have gone all the way, undoing decisions that provide protections for married couples to obtain contraceptives, for gay couples to engage in sexual conduct, and for same-sex marriage.)
“Despite the fact that the majority assured two legislatures ago that its eradication of the right to abortion ‘does not undermine… in any way’ other substantive rights rooted in due process, such as the right to marry,’ ‘the right to reside with family’ and ‘the right to make decisions about the education of one’s children’, the Court fails at the first step,” Sotomayor warned.
The most immediate risk, he said, is to same-sex couples, who often cannot live together safely in other countries. However, she hinted that there was more going on here. The majority, she said, “makes the same fatal mistake it made in Dobbs,” demanding an “overly careful” description of the purported “fundamental liberty interest.” This appears to be the first salvo in the battle over the scope of unenumerated constitutional rights unleashed by Dobbs.
The majority responded that the dissenters were drawing unwarranted conclusions. His basic message to liberals was that they should relax. “To be clear: Today’s decision does not even remotely challenge any of this Court’s precedents, including those protecting marriage as a fundamental right,” Barrett wrote in a footnote.
So how afraid should we be of the threat to same-sex marriage? If the issue arose today for the first time, I doubt the court would reach the same result as in Obergefell and declare a radical new constitutional right. At the same time – and yes, I know how arrogantly they set aside the precedent in Dobbs – I doubt that even this court is about to again alter the national legal landscape and eliminate the right to marriage equality.
Still, Barrett and her fellow conservative justices are clearly not inclined to a broad reading of the Constitution and its unenumerated rights. As Gorsuch and the dissenters pointed out, they could have sidestepped the constitutional question and decided on Muñoz on narrower grounds. Instead, they chose to reiterate the importance of restricting constitutional protections only to those “deeply rooted in history and tradition.” Was this a sign? An invitation? That liberal judges are nervous should worry us all.
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