When the Taliban ruled Afghanistan.

Photographer: Emmanuel Dunand/AFP/Getty Images

Taliban Marriage Case Hints at Liberty's Limits

Cass R. Sunstein is a Bloomberg View columnist. He is the author of “The World According to Star Wars” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
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Under the Constitution, the U.S. government cannot deprive people of “liberty” without “due process of law.” Clear enough? Clearly not. For more than a century, the Supreme Court has been sharply divided over what "liberty" means. Today’s immigration decision puts those divisions in sharp relief. With their sweeping opinions, Antonin Scalia and Stephen Breyer led the two poles -- but Anthony Kennedy’s appealingly minimalist view carried the day. 

The background is simple. Fauzia Din is an American citizen, and she lives here. Her husband, Kanishka Berashk, is a citizen and resident of Afghanistan; he served as a civil servant in the Taliban regime. The State Department denied a visa to Berashk, and Din brought suit, arguing that the denial violated her rights, because it deprived her of liberty, which she described as “her constitutional right to live in the United States with her spouse.” 

Writing for Chief Justice John Roberts and Justice Clarence Thomas as well as himself, Scalia wrote bluntly, “There is no such constitutional right.” In his account, the original understanding of the Constitution suggests a relatively narrow conception of liberty, which included a right not to be imprisoned or restrained, or to be prohibited from moving from one place to another. Din could hardly claim to have been imprisoned or restrained. 

Scalia acknowledged, with evident regret, that the court had gone beyond the original understanding of liberty -- for example, by recognizing a right to marry (here Scalia was speaking of opposite-sex couples). But he said that when it had done so, it had generally focused on longstanding American traditions. Since the government has long regulated the visa process, and imposed barriers to a person’s ability to bring a spouse into the U.S., Din could not claim the benefit of any tradition. (By the way, Scalia’s emphasis on tradition clearly shows why he doesn't think that there is constitutional right to same-sex marriage.) 

It's mildly surprising that Roberts joined Scalia's effort to limit the meaning of liberty -- but, for the future, more important still that six justices did not. 

Kennedy, writing for Justice Samuel Alito and himself, pointedly declined to accept Scalia’s broad pronouncements about liberty. On the contrary, he was willing to assume for purposes of argument that Din had a protected liberty interest. Proceeding as a minimalist, Kennedy declined to answer that question -- which meant that Scalia’s reasoning failed to command a majority. 

Nonetheless, Kennedy agreed with Scalia’s conclusion, on the ground that even if Din had a liberty interest, she had received all the process that was due. After all, the consular office had told her that, under the law, her husband was ineligible for a visa (invoking “the terrorism and national security bars to admissibility”). That was enough. 

Kennedy noted that Berashk had worked for the Taliban government, which “provides at least a facial connection to terrorist activity.” In Kennedy’s view, the Constitution doesn't require the government to provide a detailed explanation in this sensitive area, where national security concerns are involved. 

Writing for Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and himself, Breyer suggested that if liberty includes the right to marry (which he described as “central to human life”), it surely includes the right of spouses to live together as a family in the U.S. And because Din had a liberty interest, she was entitled to some kind of explanation for why the government denied a visa to her husband. 

In Breyer’s view, what Din received was inadequate. The government’s abstract reference to “terrorism and national security bars” was too abstract. She deserved to know what, in particular, the government believed her husband had done, and to learn about the factual basis for that belief.  If officials had national security grounds for insisting on secrecy, they should at least identify them. 

It's reasonable to worry that unless the government offers such explanations, it might make mistakes.  But Kennedy had a fair point: If there's any context in which minimal reason-giving might be sufficient, it is surely when a consular official is denying a visa to a former civil servant in the Taliban regime.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Cass R Sunstein at csunstein1@bloomberg.net

To contact the editor on this story:
Mary Duenwald at mduenwald@bloomberg.net