For Now, There's No Constitutional Right to Marriage
What does terrorism in Afghanistan have to do with gay marriage? Nothing, you’d probably say (unless you’re a member of the Westboro Baptist Church).
But Monday at the U.S. Supreme Court the connection was visible, at least in a plurality opinion by Justice Antonin Scalia. In a fractured decision, the court held that Fauzia Din, an American citizen, couldn’t get a hearing in court after the State Department refused a visa to her husband, an Afghan national, citing terrorism as the reason. According to Scalia, there’s no constitutional “liberty interest in marriage” sufficient to give Din a hearing over her husband’s denial -- a position that foreshadows what Scalia will certainly say when the court rules on same-sex marriage in the next couple of weeks.
Din’s case was factually simple -- at least the part we know about. A U.S. citizen, she exercised her right to petition for her husband, Kanishka Berashk, an Afghan citizen, to be designated as an immediate relative and given priority immigration status. The State Department granted the request. But a consular officer rejected Berashk’s application, stating that he couldn't be granted a visa because of the law that excludes applicants who have engaged in “terrorist activities.”
The officer said nothing more than that. But the record in the case reflects that Berashk was a civil servant in Afghanistan under the Taliban, which the U.S. designates as a terrorist organization.
It’s a well-established precedent that a foreigner seeking to come to the U.S. has no legal right to do so, and therefore no standing to go to court and ask it to review the State Department's decision. Basically, what the consular officer says is final.
The question before the Supreme Court was whether the citizen-spouse of an excluded foreigner can go to court to seek a review of the State Department's decision. For that to be the case, the court would have to hold that the spouse -- like Din -- has a cognizable constitutional interest in living in the U.S. with his or her married partner.
Scalia said no, and his opinion was joined by Chief Justice John Roberts and Justice Clarence Thomas. Scalia began by citing Magna Carta, the great charter of English liberty, signed 800 years ago to the day, on June 15, 1215. Scalia explained that the due process clause of the U.S. Constitution, with its guarantee that no one will be deprived of life, liberty or property without due process of law, has its origins in Magna Carta. Neither Din nor Berashk had been denied life or property, he said. That left only the question of liberty, specifically Din’s liberty to live in the U.S. with the man she married.
This brought Scalia implicitly to same-sex marriage. In the pending marriage cases, one way for the Supreme Court to find a right to gay marriage would be for it to say that marriage to a partner of one’s choice is a fundamental liberty right. If the court says that, then both the due process clause and the equal protection clause would require the government to have a compelling interest to deny gay people the right to marry.
Scalia took the opportunity in Din’s case to make the argument that there’s no such fundamental liberty. He concluded, after reviewing the case law, that there is no “free-floating and categorical liberty interest in marriage … sufficient to trigger constitutional protection whenever a regulation in any way touches upon an aspect of the marital relationship.”
It’s no surprise that Scalia and Thomas think there’s no fundamental right to marriage. But the fact that Chief Justice Roberts joined should pour cold water on speculation that he might join the court’s liberals in the gay-marriage decision. In theory, he could still write a separate opinion that says a ban on gay marriage is an irrational form of sex discrimination; but it would be tricky for him to do so now that he’s on the record as saying there’s no special right to marry.
What about Justice Anthony Kennedy, widely expected to write the gay-marriage decision that will be joined by the court’s four liberals? He ducked the issue altogether in Din’s case. Joined by Justice Samuel Alito, Kennedy wrote that even assuming there is a fundamental right to live with your partner, so that Din would’ve had the chance to go to court, it didn’t matter, because the State Department gave a sufficient explanation of Berashk’s denial.
This could give us a hint about how Kennedy will go about deciding the gay-marriage cases, namely by using his inventive constitutional concept of “equal dignity” rather than declaring a fundamental right to gay marriage.
Din was asking the court to require a fuller explanation of her husband's exclusion, and decide whether the exclusion was proper. So if the explanation was already provided, in Kennedy’s view, the case is over. Because Kennedy and Alito provided two votes saying that Din loses, their votes join those of the three conservatives to make the outcome of the case a defeat for Din.
The four liberals dissented, in an opinion by Justice Stephen Breyer. The opinion pointed out correctly that the plurality’s opinion won’t become binding precedent. And Breyer mentioned a technical distinction between due process rights to fair procedure, which Din sought, and what’re called “substantive due process rights,” like the right to marry itself. So the liberals aren’t absolutely committed to announcing a fundamental right to gay marriage in the pending cases. They could join Kennedy’s opinion in that case even if it never mentions fundamental rights at all.
But Breyer did say that, when it comes to guaranteeing fair procedures, there exists a fundamental liberty interest in marriage. Marriage “plays a central role in most individuals’ orderly pursuit of happiness,” he wrote. He denied that he was breaking new constitutional ground, as Scalia charged. And Breyer concluded that the State Department hadn’t said enough when it explained Berashk’s exclusion.
For now, Din lost, as did other citizen-spouses of foreigners who are denied citizenship. But the issue will come back to the court in the future -- especially after the gay-marriage decision.
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To contact the author on this story:
Noah Feldman at firstname.lastname@example.org
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