Under U.S. immigration law, noncitizens don’t have the right to challenge visa denials in court. But Muñoz claimed that the refusal to give her husband a visa infringed 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 has said is guaranteed under the Constitution.
The court rejected that argument. “A citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country,” Justice Amy Coney Barrett wrote for the majority.
Such a right, she said, is not “deeply rooted in this Nation’s history and traditions,” 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 outlined in the text.
You can guess the reason for the liberal justices’ worry here. The first sentence in 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 by a far different court; two members of the majority, Justice Anthony M. Kennedy and Ruth Bader Ginsburg, have now been replaced, by Justices Brett M. Kavanaugh and Barrett.
The majority could have disposed of this case, Sotomayor argued, simply by declaring that Muñoz had received all the process she was due — an explanation from authorities about why the visa was refused. (Justice Neil M. Gorsuch made the same point, concurring in the outcome, but not joining the majority opinion.)
“That could and should have been the end of it,” Sotomayor said. “Instead, the majority swings for the fences.” Its approach to the constitutional right to marriage, she warned, is inconsistent with the understanding it outlined in Obergefell — and its assurances in Dobbs v. Jackson Women’s Health Organization, its 2022 decision eliminating constitutional protection for abortion rights, that other precedents were not at risk.
The majority in Dobbs disclaimed any interest in revisiting other decisions, including Obergefell, grounded in unenumerated rights. (Justice Clarence Thomas would have gone all the way, undoing decisions establishing protection for married couples to obtain contraceptives, for gay couples to engage in sexual behavior, and for same-sex marriage.)
“Despite the majority’s assurance two Terms ago that its eradication of the right to abortion ‘does not undermine … in any way’ other entrenched substantive due process rights such as the right to marry,’ ‘the right to reside with relatives,’ and ‘the right to make decisions about the education of one’s children,’ the Court fails at the first pass,” Sotomayor warned.
Most immediately, she said, the risk is to same-sex couples, who often can’t safely live together in other countries. Yet she intimated there was more going on here. The majority, she said, “makes the same fatal error it made in Dobbs,” requiring “too careful” a description of the claimed “fundamental liberty interest.” This reads like the first salvo in the battle over the scope of unenumerated constitutional rights unleashed by Dobbs.
The majority responded that the dissenters were leaping to unwarranted conclusions. Its basic message to the liberals was that they should chill out. “To be clear: Today’s decision does not remotely call into question any precedent of this Court, including those protecting marriage as a fundamental right,” Barrett wrote in a footnote.
So, how fearful should we be about the threat to same-sex marriage? If the question were to come up for the first time today, I doubt the court would reach the same result as in Obergefell and declare a sweeping new constitutional right. At the same time — and, yes, I know how cavalierly they tossed aside precedent in Dobbs — I doubt that even this court is about to upend the national legal landscape again and eliminate the right to marriage equality.
Still, Barrett and her fellow conservative justices are clearly not inclined to any broad reading of the Constitution and its unenumerated rights. As Gorsuch and the dissenters pointed out, they could have ducked the constitutional question and decided Muñoz on narrower grounds. Instead, they opted to reiterate the importance of restricting constitutional protections to only those “deeply rooted in history and tradition.” Was this a signal? An invitation? That the liberal justices are nervous should worry us all.
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