This morning, in a case long on judicial musings about the nature of marriage, the US Supreme Court handed down the other marriage case —Kerry v Din. In Din, Justice Scalia wrote for a majority of five, finding that a naturalized American citizen whose Afghan husband was denied a visa on national security grounds, did not have a constitutional right to know more about the reasons for the denial. Only three Justices—Scalia, Chief Justice John Roberts and Clarence Thomas—felt that the spouse had no “liberty interest” in her marriage. Justices Samuel Alito and Kennedy agreed with them, but only to the extent that they felt the explanation given by the U.S. State Department was adequate. Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor dissented, contending that denial of a visa in those circumstances violated the “liberty” interests of the American wife.
Fauzia Din came to the United States as a refugee in 2000, and became a naturalized citizen in 2009. She married Kanishka Berashk in 2006 and sought to obtain an immigrant visa for him. Berashk had worked as a clerk for the Afghanistan government when it was controlled by the Taliban. In 2009 the State Department refused to grant that visa, claiming that he had been involved in “terrorist activities.” Din said the visa denial interfered with her fundamental right to marriage. A federal appeals court in California agreed, ruling that she was entitled to “a facially legitimate reason” for the denial. The two questions before the court were whether the refusal of a visa to a U.S. citizen’s alien spouse impinges upon a constitutionally protected interest of the citizen; and whether a spouse may challenge in court the refusal of a visa to her husband and demand that the government show the basis for the refusal.
Din claimed that her due process rights had been violated by the visa denial, but the majority found that there was no constitutional deprivation. Name-checking the Magna Carta in his decision, Justice Scalia scoffs that the court has, “on several occasions,” decided to “expand the meaning of ‘liberty’ under the Due Process clause to include certain implied ‘fundamental rights.’” He rejects the argument that Din has a fundamental liberty interest in her marriage and pokes fun at Justice Stephen Breyer’s urging that Americans have a “right of spouses to live together and raise a family.” He accuses Breyer of trying to elevate “footnoted dictum” into constitutional law. He further warns that Breyer’s “new pairing of substantive and procedural due process” suggest “we are in for quite a ride.”
Justices Anthony Kennedy and Samuel Alito wrote separately to concur in the result, but not the reasoning. They don’t need to get to the question of Din’s protected liberty interest because they believe the notice she received about her husband’s visa denial satisfied due process. Finally, Justice Breyer penned the dissent, arguing that Ms. Din has a liberty interest in living together with her husband in the United States. As he puts it, “How could a Constitution that protects individuals against the arbitrary deprivation of so diverse a set of interests not also offer some form of procedural protection to a citizen threatened with governmental deprivation of her freedom to live together with her spouse in America?” Then he takes on Justice Kennedy’s finding that the reasons Din was given for the visa denial were adequate, concluding, “I do not deny the importance of national security, the need to keep certain related information private, or the need to respect the determinations of the other branches of Government in such matters. But protecting ordinary citizens from arbitrary government action is fundamental. Thus, the presence of security considerations does not suspend the Constitution. Rather, it requires us to take security needs into account when determining, for example, what “process” is “due.”