Justice Antonin Scalia went over the top the last time the U.S. Supreme Court considered same-sex marriage. From an opinion he wrote this week in an immigration case called Kerry v. Din, I suspect he is determined not to do that again.
On June 26, 2013, the Supreme Court announced United States v. Windsor. In Windsor, the majority invalidated the federal Defense of Marriage Act. In the future, the federal government would be required to recognize same-sex marriages if they were legal in the state where they were performed.
The decision enraged Scalia. He wrote that “the real rationale of today's opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘bare ... desire to harm’ couples in same-sex marriages.” A “bare desire to harm” has been, since 1973, an automatic disqualification in constitutional law. If that’s what Windsor meant, then marriage equality was a done deal.
Scalia ridiculed the majority’s decision by casting it in the broadest possible light. But in so doing, he may have turned his opinion into a self-fulfilling prophecy. In the summer and fall of 2013, decisions by lower courts, as foretold, cited Windsor to require states to perform and recognize same-sex marriages. Many of them also used the Scalia dissent to buttress their conclusion that state same-sex marriage bans had no constitutional validity. In one Utah decision, for example, District Judge Robert J. Shelby wrote that “The court agrees with Justice Scalia's interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.”
We won’t know until later this month whether there will be a same-sex marriage opinion for Scalia to dissent from, but Kerry v. Din suggests that he may be fine-tuning his language. Din was a challenge by a naturalized American citizen, Fauzia Din, to the exclusion of her non-citizen husband from the United States. Her husband, Kanishka Berashk, had been an Afghan civil servant during the period of Taliban rule in Kabul. Din married Berashk in 2006; in 2007, Din became a citizen and applied to bring her husband to the United States. But when he applied for a visa, the U.S. Embassy in Pakistan denied his application. Officials cited a statutory provision barring aliens involved in “terrorist activity”; they offered no explanation of what Berashk himself was supposed to have done.
Din filed suit asking for full judicial review of the decision, meaning the government would have to explain its conduct. The Ninth Circuit held that she had a “protected liberty interest in marriage” that required judicial review.
By a vote of 5-4, the Supreme Court reversed the Ninth Circuit. Berashk stays out and the government needn’t say why. The five-justice majority, however, was split. Justices Anthony Kennedy and Samuel Alito wrote a narrow decision. Din might or might not have that “liberty interest” in bringing Berashk to the U.S., Kennedy wrote, but even if she does, she’d gotten all the “process” that was “due.” National-security concerns require the courts to defer to executive decisions, the opinion said; case closed.
Scalia wrote a much, much broader opinion for himself, Chief Justice John Roberts, and Justice Clarence Thomas. Din, he wrote, has no “liberty interest” at all in living with her husband. There is no “free-floating and categorical liberty interest in marriage ... sufficient to trigger constitutional protection whenever a regulation in any way touches upon an aspect of the marital relationship.”
Scalia conceded that many of the Court’s precedents speak of a “fundamental right” to marry. But “the Federal Government here has not attempted to forbid a marriage.” Din got to marry Berashk; she has no due process right to live with him. True, some of the earlier cases mentioned such additional rights as the right to live together and form a family; but he insisted the question is not what those “fundamental right” cases said about marriage, but what specific rights the cases involved. “Even if we might ‘imply’ a liberty interest in marriage generally speaking, that must give way where there is a tradition denying the specific application of that general interest.”
Thus, Scalia pointed out, American immigration law for years provided that a woman like Din who married a foreigner would lose her own citizenship, rather than being able to extend U.S. citizenship to her husband. (For male citizens, the reverse was true, and the Supreme Court blessed this discrimination in 1915 on the grounds that marriage law should give “dominance to the husband.”) So how could there be a “tradition” of allowing women to bring their husbands to the U.S.?
The loss of citizenship provision was largely repealed in 1922. Scalia admitted that caselaw since then creates “substantial doubt” on its constitutionality. (Sex discrimination being now subject, over Scalia’s repeated objections, to “heightened scrutiny.”) Immigration law today treats citizen husbands and wives alike, and favors reunification of families—but that, Scalia wrote, is “a matter of legislative grace rather than fundamental right.” What matters is not whether the law should have discriminated, but that it did: “This all-too-recent practice repudiates any contention that Din’s asserted liberty interest is ‘deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.’”
The logic here requires several steps. First, an individual has a right to marry, but that’s all it is; if he or she wants more than that—say, the right to adopt a spouse’s children, or to be listed on a marital child’s birth certificate, or to be treated as a spouse for purposes of adoption after marriage, or even to live with a spouse—then another step is needed. He or she must prove that this specific right is “deeply rooted” in American history. If it has been denied widely in the past, then the right does not exist today; and that’s true even if the denial in the past is based on grounds that would be unconstitutional today.
Grounds like, to pick an example at random, sexual orientation or same-sex marital status.
Anybody who follows the news realizes that the opponents of gay marriage have by now all but despaired of victory at the Supreme Court. There has been bluster in Alabama and elsewhere about defying such a decision, but the realists know that fight goes nowhere: If federal courts order states to marry these couples, Tinker Bell is going to die no matter how loudly they clap their hands.
The real fight is going to be over unequal treatment in the incidents of marriage—not in cakes or photographs but in adoption, child custody, healthcare—indeed perhaps even in the right to live with spouses and children.
The Supreme Court’s decision, whatever it is, will not resolve the thorny questions about whether states must treat same-sex marriages like opposite-sex ones in those areas. In some states, advocates may have to fight these issues case by case in court; Scalia’s language in Din offers ammunition to lawyers defending discriminatory state bans, and judges inclined to uphold them.
The state can no longer forbid you to marry; but rules against same-sex adoption are long-standing (and in many cases are still on the books). Thus there can’t be any “liberty interest” in equal treatment in those areas. Same-sex couples will be directed to the legislatures, to beg these rights as matters of “grace.”
In the long run, I suspect, the states will have to give way on these issues. A valid marriage, the law will recognize, is valid for all legal purposes. But if that’s resolved by house-to-house fighting, a lot of bile and stigma may be spilled on same-sex couples and their children as it unhappens. Whether Scalia’s opinion in Kerry will lengthen that ordeal is hard to say in advance. But this time, I suspect, he’s determined not to give any aid or comfort to the enemy.
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