The Supreme Court’s other big decision on marriage

In a shocking decision, the Supreme Court ruled last week that government officials may deny Americans marriage benefits without the right to challenge. Even as the high court recognized marriage benefits for same-sex couples, it dealt a blow to the rights of millions of Americans who wish to marry immigrants.

The case, Kerry v. Din, involves an American citizen, Fauzia Din, who married an Afghani man, Kanishka Berashk. Din petitioned for a visa for Berashk, but the consular officer in Pakistan denied it, citing supposed “terrorist activities.” However, the officer provided no proof or other explanation. (Berashk was a payroll clerk in the Afghan government before the U.S. invasion, but even this wasn’t cited.)

Without question, the government can deny an American the right to be with his or her spouse if the spouse is a criminal, American or not. But the questions here are 1) whether the government should have to provide proof, or at least state the specific reason, for denying an American the right to be with his or her spouse; and 2) whether a denial without explanation is subject to judicial review.

Din appealed the consular decision, arguing she was denied her rights without the due process guaranteed by the Fifth Amendment to the Constitution. The U.S. district court threw out her claim, but the Ninth Circuit Court of Appeals found she “has a protected liberty interest in marriage that entitled her to review of the denial of her spouse’s visa.”

Before the Supreme Court, the Obama administration argued that the U.S. government has absolute power to exclude spouses of American citizens for any reason and that no judicial review or due process should be available to those affected by even erroneous decisions of consular officers.

{mosads}Shocked by this argument, Supreme Court Justice Stephen Breyer asked Solicitor General Edwin Kneedler to imagine that Din had “undeniable proof” that the consular officer rejected the application for racial reasons or to suppress free speech: “Is your position that it doesn’t matter?”

Kneedler responded only by repeating, “There is no judicial review.”

The court’s ruling, delivered by Justice Antonin Scalia and joined by four other justices, is nothing less than an overview of the ways in which immigration restrictions have been used to trample on the rights of married couples. “As soon as Congress began legislating in this area, it enacted a complicated web of regulations that enacted serious impediments to a person’s ability to bring a spouse to the United States,” Scalia wrote.

Scalia pointed out that for a period after 1907, American women actually lost their citizenship when they married an immigrant and that the initial immigrant-quota system imposed in 1921 gave no preferences for husbands of U.S. citizens. For men, the law was little better because the quotas were so low that men had little hope of obtaining visas. The policy that denied Din’s claim, Scalia reasoned, was just in this proud tradition.

Scalia wrote that to the extent that Americans’ marriages to foreigners are better protected today than previously, “this has been a matter of legislative grace rather than fundamental right.” He concluded, “What Justice Breyer’s dissent strangely describes as a ‘deprivation of her freedom to live together with her spouse in America,’ is … nothing more than a deprivation of her spouse’s freedom to immigrate to America.”

But of course, this is exactly the point. The right of an American to marry implies a right for a spouse to immigrate here, just as the right to speak implies the right to hear. The two rights are interrelated in a way that cannot be divorced. If persons cannot receive the benefits of marriage — the right to be with their spouses legally — they have no true right to marriage.

Immigration officers could violate any of our fundamental rights — as the Supreme Court has long declared marriage to be — with impunity if this decision stands. They could deny individuals based on free speech or religious grounds without explanation, and no court could intervene.

Unlike the opinion given by Scalia, Justices Anthony Kennedy and Samuel Alito’s concurring opinion refused to say whether Din had a liberty interest in being with her husband, but they concluded that even if she did, it wouldn’t matter. The government’s one-sentence statement asserting “terrorist activities” satisfied due process.

The right to marry — in the real sense of forming a family in the United States — should not be a matter of “legislative grace,” nor should it be dismissed without justification or, indeed, proof. But if it can be, Congress should protect the institution and restore due process for Americans who wish to marry immigrants.

Due to an error in editing, the final two paragraphs were unintentionally omitted from the piece when first published.k

Bier leads the immigration policy department at the Niskanen Center, a libertarian nonprofit.