Under U.S. immigration law, foreigners have no right to challenge a visa denial in court, but Munoz argued that her husband’s denial of a visa violated her fundamental right to live with her spouse in the U.S., which is part of a right to marry protection that the courts have said is guaranteed by the Constitution.
The court rejected that argument. “Citizens have no fundamental liberty right to the admission of their alien spouses,” Justice Amy Coney Barrett wrote in the majority opinion.
She said such rights “are not deeply rooted in the history and tradition of this country,” and cited a 1997 case that has served as a touchstone for determining the scope (or, in the case of abortion, limiting) of constitutional rights not specifically written into the text.
You can probably guess why the liberal justices were worried. The first sentence of Justice Sonia Sotomayor’s dissenting opinion reads: Obergefell v. Hodges, The case that upheld the right of same-sex couples to marry in 2015. It was a 5-4 decision by an entirely different court, with two of the majority members, Justice Anthony M. Kennedy and Justice Ruth Bader Ginsburg, now replaced by Justices Brett M. Kavanaugh and Barrett.
Sotomayor argued that the majority could have resolved the case by simply declaring that Muñoz had received all the due process, including an explanation from authorities as to why his visa had been denied. (Justice Neil M. Gorsuch made the same point, concurring in the decision but not joining the majority opinion.)
“That could have been the end of it, and it should have been,” Sotomayor said, “but the majority took bold action.” She warned that his approach to the constitutional right to marry was inconsistent with the understanding outlined in the Constitution. Obergefell — And the guarantee Dobbs v. Jackson Women’s Health Organization, The decision to strike down constitutional protections for abortion rights in 2022 did not put other legal precedents at risk.
The majority Dobbs It denied any intention to reconsider other decisions. Obergefell, Based on countless rights (Justice Clarence Thomas would act drastically to overturn decisions protecting married couples’ access to contraception, same-sex couples’ sexual activity, and same-sex marriage).
“Although the majority two terms ago assured that eliminating abortion rights would not ‘in any way impair’ other well-established substantive due process rights, such as the ‘right to marry,’ the ‘right to live with relatives,’ or the ‘right to decide about one’s children’s education,’ the Supreme Court failed on its first test,” Sotomayor warned.
The most immediate risk, she said, is to same-sex couples, who often cannot live together safely in other countries. But she suggested there’s a lot more going on here. The majority, she said, are “in a state of emergency.” Dobbs” calls for an “overly cautious” description of the alleged “fundamental liberty interests.” This reads like the first blow in a battle over the scope of unenumerated constitutional rights. Dobbs.
The majority countered that the dissenters were jumping to unwarranted conclusions. Their basic message to liberals was that they should calm down. “To be clear, today’s decision does not in any way call into question any of this Court’s precedent, including our precedent protecting marriage as a fundamental right,” Justice Barrett wrote in a footnote.
So how scared should we be about threats to same-sex marriage? If this issue were asked for the first time today, I’m not sure the Court would reach the same conclusion as it did last time. Obergefell And they proclaimed sweeping new constitutional rights. And at the same time, and yes, I know how they blithely ignored precedent. Dobbs — It seems unlikely that even this Court would again overturn the national legal system and eliminate marriage equality rights.
Still, Barrett and other conservative justices are clearly not inclined to interpret the Constitution and its unenumerated rights broadly. As Gorsuch and the dissenters pointed out, they avoid constitutional issues by Munoz On narrower grounds. Instead, they chose to reemphasize the importance of limiting constitutional protections to only those “deeply rooted in history and tradition.” Was this a signal? Or an invitation? The fact that liberal justices are nervous should worry us all.
