Thursday, June 18, 2015

Symposium on Kerry v. Din: Married, But Separated by Michael Kagan


Today, we continue the symposium on the Supreme Court's ruling on Monday in Kerry v. Din.  Earlier this week, ImmigrationProf posted incisive analysis of the decision by Professors Elizabeth Keyes and Geoffrey HereenProfessor Michael Kagan (UNLV) offers his analysis:

Married, But Separated by Michael Kagan

Fauzia Din, an Afghan refugee who became a U.S. citizen and married an Afghan citizen, sought to bring her husband to live with her in the United States. The State Department refused to grant him a visa, offering the very thin explanation that he was inadmissible because of a statute that covers various forms of support for terrorism. But the consulate did not explain why this statute applied to him.  Ms. Din asked the Court to find that as a matter of due process the consulate should have had to provide a better explanation.

The Court said no, and that’s abut all the Court said with any clarity. In fact, it seems imprecise to describe Kerry v. Din as a decision of the Supreme Court. With no controlling logic, it’s more an accident produced by the way the Court keeps score. The legal analysis that garnered the most judicial support – 4 justices – was Justice Breyer’s dissent. If the Supreme Court used a first-past-the-post system like federal elections, then the dissent would have been the decision. Sigh.

Compounding the confusion, the analysis used by two concurring justices (Justice Kennedy writing for himself and Justice Alito) had more doctrinally in common with the dissent than with the plurality. In total, six justices were willing to at least assume for the sake of argument that Ms. Din was owed due process. That is a critical starting point. Of these, four (the dissenters) thought the process used by the State Department was insufficient. Two (the concurrence) thought it was adequate.

Kennedy and Breyer are arguing about how much due process a would-be immigrant is owed, a question that has plagued immigration law since the Chinese Exclusion Case.nFor reasons that Prof. Geoffrey Heeren and Prof. Elizabeth Keyes have ably explained already, Justice Breyer has the better of this argument. For what it’s worth, Justice Breyer’s view got more votes on the court.

By contrast, the plurality decision does not seem to be much about immigration, although it does make reference to some old immigration cases. It’s much more about trying to define the right to marriage, because Justice Scalia claims that no constitutional rights are implicated by preventing a person from living with her spouse.

This is of course an interesting moment for the justices to offer views on the right to marriage, since in the next few weeks the Supreme Court is going to be deciding a case about whether state can ban and refuse to recognize same sex marriages. As a result, Justice Scalia’s opinion in Kerry v. Din are attracting more attention than it otherwise might as commentators look for clues revealing the justices’ views on same sex marriage. This kind of attention may come as a surprise to Ms. Din, who is a woman married to a man, and who simply wants to live with him in the United States. But since my colleagues have already thoroughly covered the immigration issues, I’ll focus on the right to marriage issues.

Wait, which one is the conservative?

The terms of the debate about marriage in Kerry v. Din offer a pretty good indication (in case we needed a new one) that American discourse about the nature of marriage has shifted radically. It is now left to liberals to defend the traditional role of marriage as the foundation of society, while conservatives seem confused about how to respond.

In Din, the four ostensibly liberal justices offered a defense of “the institution of marriage” (Justice Breyer’s term). This phrase used to be a conservative talking point. Justice Breyer wrote that “the right of spouses to live together and raise a family is central to human life.” That seems like a pretty traditional definition of marriage. But the ostensibly conservative justices in the plurality found Justice Breyer’s argument that married people have a right to live together to be “strange.” 

Meanwhile, ostensibly conservative justices Scalia issued an opinion that seemed to question whether marriage was really such an important thing historically in Anglo-American law. It’s almost like he is minimizing the importance of marriage, which is something conservatives used to accuse liberals of doing.

Something is strange, that’s for sure. But I’m not sure it’s Justice Breyer’s definition of marriage.

Is there a right to marry, or not?

Within just a few weeks we will know for certain what the justices think about same sex marriage. But, just for sport (and a bit of fun), let’s look closely at what Justice Scalia has to say about marriage in Din. The core of Justice Scalia’s argument is that there is no constitutional right to live in the United States with one’s spouse. He calls the assertion that there may be such a right part of an “artificial world of ever-expanding constitutional rights.” As a result, Ms. Din’s due process rights were not implicated when she was unable to bring her spouse to America.

Justice Scalia argues that due process protections should only apply to deprivations of liberty as liberty was defined by Blackstone, Edward Coke’s Institutes, and the Magna Carta. He says that liberty was historically limited to freedom of movement and freedom from restraint. He thus attacks the entire doctrine of “fundamental rights” (which he puts in quotes). The logical extension of this argument would seem to be that there is no fundamental right to marriage at all.

But then Justice Scalia pulls back and distinguishes Fauzia Din’s request that her husband come to live with her from other cases in which states banned certain people from marrying. Three such cases are cited in his opinion, one of which is Loving v. Virginia, a case which has figured rather prominently in arguments for marriage equality. We thus have an opinion that sets out a sweeping argument suggesting that everything the Court has told us about fundamental rights is wrong, starting with the right to marriage itself. Then it suddenly steps back and says, but of course the government could not actually forbid marriage.

That’s confusing. And if it reflects Justice Scalia’s actual thinking, well, then he’s just confused. But – in the name of idle speculation – there is another interesting possibility. What if Justice Scalia would be happy to carry his argument to its logical conclusion. But what if it was the Chief Justice who insisted on inserting the line distinguishing Din from the other right to marriage cases? What if that was the Chief Justice’s price for signing on, and thus making Justice Scalia’s opinion the plurality (rather than Justice Kennedy’s)?

There have been some early interpretations asserting that Chief Justice Roberts has tipped his hand on same sex marriage by signing on with Justice Scalia in Kerry v. Din. Some have said that this shows that the Chief Justice apparently agrees that there is no right to marriage – for instance Mark Joseph Stern in Slate and Noah Feldman on Bloomberg.

But I think that’s a misreading. The plurality opinion in Din actually seems to say that there is a right to marriage, because it says that states cannot forbid marriage. Now, I concede, this goes against the logic of most of Justice Scalia’s opinion. But there it is on page 7: “Unlike the States in Loving v. Virginia, Zablocki v. Redhail, and Turner v. Safley, the Federal Government here has not attempted to forbid a marriage.” The Loving decision says, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” It seems that someone signing this opinion wanted to make clear that they are not questioning Loving and the other cases where the Court has found that there is in fact a right to marriage.

Let’s take this speculation a little farther. Loving, Zablocki, and Turner all concerned heterosexual marriages. Justice Scalia could have explained them as cases concerning the right of men and women to marry. But that’s not how oninionis written. Instead, Justice Scalia described these cases in notably gender neutral terms. He wrote that Din is not a case in which the government forbid “a marriage.” I could see another justice quoting that line in explaining why Ohio and Michigan cannot forbid gay couples from marrying.  More to the point, this line leaves the Chief Justice plenty of room to part ways with Scalia and Thomas and support a constitutional right to same sex marriage, should he so desire.

I am not actually willing to bet any money that the Chief Justice will support marriage equality. For the record: I make no predictions. I think we already know that Justice Scalia and Justice Thomas do not think there is a constitutional right to same sex marriage. But we don’t know as much about Chief Justice Roberts. And in this light, I do find the line in the plurality about states forbidding marriages pretty interesting. Because of this line, I think we still don’t know what the Chief Justice thinks about the right to marriage. For the time being, it’s enough to say that he has left himself room to go either way.

Can’t they just move to Afghanistan?

Immigration cases raise the right to marriage in a somewhat odd way, and this appears to limit the power of the due process claim for some justices. In a conventional marriage visa case, the couple might be able to live together in another country. If an American marries a Mexican, it may be a matter of personal choice whether the couple prefers to live in Mexico or the U.S. And if it is really just a matter of personal convenience, then there might be a bit more force to Justice Scalia’s assertion that this is about a proposed right to immigrate, not about the right to marry.

The trouble with this has already been highlighted by Prof. Keyes. She points out that Fauzia Din had no choice but to live in the United States. She was a refugee from Afghanistan, having fled persecution there in 1996. She cannot join her husband in Afghanistan. The only way this couple can be together would be for him to come to the United States. Because of individual circumstances like this, not all couples can be lumped into the same category.

With more nuance, Justice Scalia (and Justice Kennedy, who focused more on how much process is due) might have arrived at a defensible position. Under Mathews v. Eldridge, due process requires a balancing test. The weightier the interest at stake the more process is normally required. One plausible approach would be to require an individualized inquiry into whether the couple could actually live in another country. Arguably, if doing so is viable, then the interest at stake in the visa to the U.S. is less weighty, and less process is required. But if no other country is a viable option, then denial of a spousal visa is tantamount to a denial of a married couple’s right to live together, and far more process should be required.

Is it important for married people to live together?

To review: Justice Scalia first tells us that fundamental rights are a myth and seems to be arguing that marriage was not included in the original meaning of liberty as it is used in the Fifth Amendment.  Then he tells us that, well, actually it might be a problem if the government were to forbid a marriage. So, Ms. Din does actually have a right to marry, apparently. But Justice Scalia nevertheless finds that she still loses on her due process claim, because this case is not actually about her right to marry. It’s about whether she has a right to live in the United States with the person who she married.

The thrust of Justice Scalia’s conclusion is that the right to marry is severable from the right to be together. On this point, Justice Scalia might need to be reminded that in Loving v. Virginia, the statute that the Court struck down prohibited interracial couples from residing together, “cohabitating as man and wife.” That’s what the State of Virginia thought it was banning in its statutes against interracial marriage.

I am interested in how the link between togetherness and marriage plays out in the same sex marriage case. There are people in the United States who believe that allowing gay couples to marry could undermine heterosexual marriages. I don’t understand why that would be. But it seems to me a bit more obvious – and I would think less controversial – that preventing couples from living together could undermine marriages of all types.

For what it’s worth, in the oral argument in the same sex marriage case, attorney John J. Bursch defended Michigan’s ban on same sex marriage as a rational measure by which the state aimed to tie “children to their biological moms and dads.” Now, I am not a biologist. However, it is my understanding that, even in a traditional marriage of a man and a woman, it will be difficult for the couple to produce biological children if they are not allowed to be together, you know, in the same room.

In the case of Ms. Din, that would require that her husband get a visa.



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