Parsing the clues before the Supreme Court's same-sex marriage decision

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Supreme Court Weighs Same-Sex Marriage


(NYMag) -- With only 11 decisions left in its current session, there's every indication the Supreme Court is saving Obergefell v. Hodges, the same-sex marriage case, until the very end. The shtick of saving the big cases for last has become so commonplace, there's even a scholarly paper on it.

But why wait for a ruling on gay marriage when you can search for clues. And one of the clearest signs about how the court might rule came this past week, when the justices ruled on Kerry v. Din, a case that had little to do with marriage and a lot to do with immigration, terrorism, and foreign affairs. It was one of those hopelessly divided decisions, with conservatives on the winning side and liberals on the losing end.

Something must have happened behind the scenes, though, because Justice Antonin Scalia, who wrote the lead opinion in Din, couldn't command a true majority. And thus the case set no binding precedent. It did, however, give the Queens native a perch to share some of his feelings on the "right" to marriage — yes, he used scare quotes all over.

At the center of the case was Fauzia Din, an American citizen who sued the State Department after it denied her Afghan husband's visa application. Such denials happen all the time, and foreign-born spouses have no right to sue in court to review the decisions. So Din went ahead and sued instead because she was given no explanation for her husband's denial, even after years of seeking answers. Din believed that amounted to a deprivation of her constitutional rights — because, as an American, she has an interest in being united with her spouse, free and clear of government interference. Or at the very least, a right to an explanation why the two can't be together on American soil.

Scalia wasn't buying it. "There is no such constitutional right," he wrote flatly, and characterized Din's claim as belonging to "the artificial world of ever-expanding constitutional rights." Ouch.

Before you judge Scalia for judging Din so harshly, consider that her husband wasn't just any visa applicant. The man, Kanishka Berashk, actually worked as an administrative clerk for the Afghan government before, during, and after it was under the control of the Taliban. Stop there, and it makes sense Scalia would focus on how "terrorist activities," however broadly defined by law, also call to mind "violent and destructive acts," and that the government, in its wisdom, can keep someone like Berashk out of the country even if his link with terror is tenuous at best. No further explanation needed.

Of course, Din and Berashk's love story is a bit more nuanced than that — Justice Sonia Sotomayor characterized their ordeal as "an administrative nightmare" at oral arguments. But Scalia couldn't be bothered with any of that. His job was to decide if their due-process rights were violated. And to get there, he indulged his inner originalist and brought up the Magna Carta, learned treatises on the laws of England, and ultimately the text of the Fifth Amendment, which explicitly demands due process for "life, liberty, or property." After examining these sources, he concluded that Din's claim was "absurd" — that the federal government had not deprived her or Berashk of any of those things, and thus she necessarily had to lose. As consolation, he suggested that "Din remains free to live with her husband anywhere in the world that both individuals are permitted to reside."

Here's why this matters for the still-undecided gay marriage case: Because in all of this, Scalia saw fit to assail his dissenting colleagues — led by Justice Stephen Breyer — for their view of "ever-expanding" rights. This debate is bigger than Din or Obergefell and has been going on for decades, but it goes something like this: Does the Constitution protect only the rights explicitly listed in it, or there's more to be gleaned from its text?

Of the many thingsObergefell stands for, one of them is whether gays and lesbians have a "fundamental right" to marriage. If the Supreme Court rules that they do, then so long gay-marriage bans in all states that still have them — for the simple reason that you can't just trample on a fundamental right without an extremely powerful justification. So far states have failed at providing any. That's the least due process and equal protection of the laws require.

All of this would be crazy talk to Scalia. Indeed, in Din he looked at precedents that have long stood for the concepts of family and marital privacy — and others he derisively called "implied rights," as in, nowhere in the Constitution — and determined there's no such thing as a "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."

That's pretty much the gist of Obergefell. The dismaying thing about it, as Harvard Law Professor Noah Feldman pointed out, is that not even liberal justices are "absolutely committed to announcing a fundamental right to gay marriage." Not because they don't believe there is one — as the Din dissent shows, they'd be comfortable with making room in the Constitution for it — but because there are only four of them, and they need a fifth vote to give gay couples a win.

That vote won't come from Scalia, but from Justice Anthony Kennedy, who has written all three major gay-rights decision in the past. Kennedy, at least when it comes to constitutional rights, exists in a world all by himself — where states' rights and "dignity" for persons are equally important and worthy of respect. In United States v. Windsor, the case that struck down part of the Defense of Marriage Act, Kennedy wrote that New York, which already had marriage equality, "used its historic and essential authority to define the marital relation in this way," and thus the state's "role and its power in making the decision enhanced the recognition, dignity, and protection of (gays) in their own community." Talk about sweet-talking both sides of the debate.

In Obergefell, though, four states are imploring the Supreme Court to leave their same-sex marriage bans in place. So how do you decide for a right to marriage for gays while asserting the state's "historic and essential authority to define the marital relation"? You really can't, which is why it will be really interesting to watch Kennedy split the baby in half and take a side.

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Parsing the clues before the Supreme Court's same-sex marriage decision
A rainbow colored flag, seen through an American flag, flies in front of the Supreme Court in Washington, Monday, April 27, 2015, as the Supreme Court is scheduled to hear arguments on the constitutionality of state bans on same-sex marriage on Tuesday. (AP Photo/Andrew Harnik)
Amanda Keller holds a flag as she joins other gay marriage supporters in Linn Park, at the Jefferson County courthouse, Monday, Feb. 9, 2015, in Birmingham, Ala. Alabama began issuing marriage licenses to same-sex couples Monday after the U.S. Supreme Court refused to stop the marriages from beginning in the conservative southern state. (AP Photo/Hal Yeager)
A supporter of same-sex marriage wears a "Y'all means ALL" button at the courthouse before couples are allowed to file for a marriage license, Monday, Feb. 9, 2015, in Montgomery, Ala. Gay couples began getting married in Alabama on Monday morning, despite an 11th-hour attempt from the state's chief justice to block the weddings. Alabama is the 37th state to allow gays and lesbians to wed. (AP Photo/Brynn Anderson)
In this photo taken on Tuesday, Feb. 17, 2015, Alabama Chief Justice Roy Moore poses in front the the American flag, in Montgomery, Ala. The chief justice continues to fight against gay marriage in Alabama. Moore told state probate judges to refuse the marriage licenses to gay couples, saying they weren't bound to adhere to the ruling of the federal judge who declared Alabama's gay marriage ban unconstitutional. Moore said decision legalizing gay marriage would be among the court's greatest mistakes. (AP Photo/Brynn Anderson)
MONTGOMERY, AL - FEBRUARY 21: People rally against same sex marriage on the steps of the capitol in Montgomery, AL on February 21, 2015. The Alabama capitol was the destination of the Selma to Montgomery March in 1965 that helped lead to the Voting Rights Act. (Photo by Bonnie Jo Mount/The Washington Post via Getty Images)
Chilton County Probate Judge Bobby Martin discusses confusion over same-sex marriage in Alabama in his office in Clanton, Ala., on Wednesday, Feb. 11, 2015. This week, Martin issued a license for a gay wedding, then stopped the practice, then resumed amid confusion over competing state and federal court directives. (AP Photo/Jay Reeves)
Tori Sisson, dances with excitement for her wedding day, just before her and Shanté Wolfe are the first couple to file for their marriage license, Monday, Feb. 9, 2015, in Montgomery, Ala. Alabama is the 37th state to allow gays and lesbians to wed. (AP Photo/Brynn Anderson)
Olanda Smith, left, and Dinah McCaryer show off their certificate after being the first to be married at the Jefferson county courthouse, Monday, Feb. 9, 2015, in Birmingham, Ala. A federal judge's order overturning the state's ban on gay marriage goes into effect on Monday, making Alabama the 37th state to allow gays and lesbians to wed.(AP Photo/Hal Yeager)
IMAGE DISTRIBUTED FOR HUMAN RIGHTS CAMPAIGN - Tori Sisson and Shante Wolfe celebrate as they leave the courthouse with marriage license in hand on Monday, Feb. 9, 2015, in Montgomery, Ala. (Butch Dill/AP Images for Human Rights Campaign)
Alabama Chief Justice Roy Moore made an 11th-Hour move in the ongoing legal battle regarding same-sex marriage in Alabama. Moore issued an order late Sunday night telling state probate judges to refuse to issue or recognize marriage licenses for same-sex couples.
IMAGE DISTRIBUTED FOR HUMAN RIGHTS CAMPAIGN - Tori Sisson and Shante Wolfe celebrate with others as they get their marriage license on Monday, Feb. 9, 2015, in Montgomery, Ala. (Butch Dill/AP Images for Human Rights Campaign)
IMAGE DISTRIBUTED FOR HUMAN RIGHTS CAMPAIGN - Tori Sisson and Shante Wolfe are now legally married in the state of Alabama on Monday, Feb. 9, 2015, in Montgomery, Ala. (Butch Dill/AP Images for Human Rights Campaign)
Pastor Herman Henderson holds a cross as he speaks to supporters of gay marriage in Linn Park, outside of the Jefferson County Courthouse, Monday, Feb. 9, 2015, in Birmingham, Ala. A federal judge's order overturning the state's ban on gay marriage goes into effect on Monday, making Alabama the 37th state to allow gays and lesbians to wed. (AP Photo/Hal Yeager)
Eli Wright raises his fist as he kisses his partner Don Wright, having just been married in Linn Park, at the Jefferson County Courthouse, Monday, Feb. 9, 2015, in Birmingham, Ala. A federal judge's order overturning the state's ban on gay marriage goes into effect on Monday, making Alabama the 37th state to allow gays and lesbians to wed. (AP Photo/Hal Yeager)
Steve Davis, left, and James Farless hug after being married by Rev. Marge Ragona in Linn Park, at the Jefferson County Courthouse, Monday, Feb. 9, 2015, in Birmingham, Ala. A federal judge's order overturning the state's ban on gay marriage goes into effect on Monday, making Alabama the 37th state to allow gays and lesbians to wed. (AP Photo/Hal Yeager)
A "Marriage/Business License" sign in the Montgomery County Courthouse shows were couples can get their marriage license, Monday, Feb. 9, 2015, in Montgomery, Ala. Alabama began issuing marriage licenses to same-sex couples Monday despite an 11th-hour attempt from the state's chief justice to block the weddings.Alabama is the 37th state to allow gays and lesbians to wed. (AP Photo/Brynn Anderson)
Steve Davis and James Farless hold hands as they are married by Rev. Marge Ragona, Metropolitan Community Church, in Linn Park, at the Jefferson County courthouse, Monday, Feb. 9, 2015, in Birmingham, Ala. A federal judge's order overturning the state's ban on gay marriage goes into effect on Monday, making Alabama the 37th state to allow gays and lesbians to wed. (AP Photo/Hal Yeager)
A supporter of same-sex marriage, Loritta Bacon, holds a sign the says "Love" near the Montgomery County Courthouse, Monday, Feb. 9, 2015, in Montgomery, Ala. Alabama is the 37th state to allow gays and lesbians to wed. (AP Photo/Brynn Anderson)
Just married Erik Obermiller, left center, white shirt, and David Roby are cheered by supporters of gay marriage as they leave the Jefferson County courthouse, Monday, Feb. 9, 2015, in Birmingham, Ala. A federal judge's order overturning the state's ban on gay marriage goes into effect on Monday, making Alabama the 37th state to allow gays and lesbians to wed. (AP Photo/Hal Yeager)
Tori Sisson, left, and Shante Wolfe, right, exchange wedding rings during their wedding ceremony, Monday, Feb. 9, 2015, in Montgomery, Ala. Sisson and Wolfe are the first couple to file their marriage license in Montgomery County. Alabama is the 37th state to allow gays and lesbians to wed. (AP Photo/Brynn Anderson)
Now legally married, Dinah McCaryer, center, and Olanda Smith, behind McCaryer wearing a hat, are cheered by supporters of gay marriage as they leave the Jefferson County courthouse, Monday, Feb. 9, 2015, in Birmingham, Ala. Alabama began issuing marriage licenses to same-sex couples Monday after the U.S. Supreme Court refused to stop the marriages from beginning in the conservative southern state. (AP Photo/Hal Yeager)
Shante Wolfe, left, and Tori Sisson, fill out paperwork for their marriage license to be processed before becoming the first couple to file their marriage license in Montgomery County, Monday, Feb. 9, 2015, in Montgomery, Ala. Alabama began issuing marriage licenses to same-sex couples Monday despite an 11th-hour attempt from the state's chief justice to block the weddings. Alabama is the 37th state to allow gays and lesbians to wed. (AP Photo/Brynn Anderson)
Circuit Judge Michael Graffeo, foreground left, marries Olanda Smith, center, and Dinah McCaryer, Monday, Feb. 9, 2015 at the Jefferson county courthouse in Birmingham, Ala. A federal judge's order overturning the state's ban on gay marriage goes into effect on Monday, making Alabama the 37th state to allow gays and lesbians to wed. (AP Photo/Hal Yeager)
Shante Wolfe, left, and Tori Sisson, wait for their marriage license to be processed before becoming the first couple to file their marriage license in Montgomery County, Monday, Feb. 9, 2015, in Montgomery, Ala. Alabama began issuing marriage licenses to same-sex couples Monday despite an 11th-hour attempt from the state's chief justice to block the weddings. Alabama is the 37th state to allow gays and lesbians to wed. (AP Photo/Brynn Anderson)
The Rev. Charles Perry of Unity Church, in Birmingham, Ala., left, marries Curtis Stephens, center, and his partner of 30 years, Pat Helms, at the Jefferson County courthouse, Monday, Feb. 9, 2015, in Birmingham, Ala. Alabama began issuing marriage licenses to same-sex couples Monday after the U.S. Supreme Court refused to stop the marriages from beginning in the conservative southern state. (AP Photo/Hal Yeager)
Tori Sisson, signs a Certificate of Holy Matrimony, with her wife, Shanté Wolfe, after being the first couple to file their marriage license in Montgomery County, Monday, Feb. 9, 2015, in Montgomery, Ala. Alabama is the 37th state to allow gays and lesbians to wed. (AP Photo/Brynn Anderson)
Same-sex couple Dee Bush and Laura Bush hold hands as they wait for the Jefferson County courthouse doors to open so they can be legally married, Monday, Feb. 9, 2015, in Birmingham, Ala. A federal judge's order overturning the state's ban on gay marriage goes into effect on Monday, making Alabama the 37th state to allow gays and lesbians to wed. (AP Photo/Hal Yeager)
Pat Helms wears a sticker, tie and flower as he and partner Curtis Stephens wait for the Jefferson County courthouse doors to open so they can be legally married Monday, Feb. 9, 2015, in Birmingham, Ala. A federal judge's order overturning the state's ban on gay marriage goes into effect on Monday, making Alabama the 37th state to allow gays and lesbians to wed. (AP Photo/Hal Yeager)
Shanté Wolfe, left and Tori Sisson, right, relax in their tent near the Montgomery County Courthouse Sunday, Feb. 8, 2015, in Montgomery, Ala. Wolfe and Sisson camped out all night on Sunday to be the first couple to marry in Montgomery on Monday morning. Alabama Chief Justice Roy Moore sent a letter to probate judges Sunday evening ordering them to refuse to issue same-sex marriage licenses. (AP Photo/Brynn Anderson)
Same-sex couples wait for the Jefferson County courthouse doors to open so they can be legally married, Monday, Feb. 9, 2015, in Birmingham, Ala. A federal judge's order overturning the state's ban on gay marriage goes into effect on Monday, making Alabama the 37th state to allow gays and lesbians to wed. (AP Photo/Hal Yeager)
Tori Sisson holds out her and Shanté Wolfe's wedding rings inside their tent near the Montgomery County Courthouse Sunday, Feb. 8, 2015, in Montgomery, Ala. Alabama Chief Justice Roy Moore sent a letter to probate judges Sunday evening ordering them to refuse to issue same-sex marriage licenses. (AP Photo/Brynn Anderson)
James Dansby protests in front of the Jefferson County courthouse as same-sex couples wait for the doors to open so they can be legally married Monday, Feb. 9, 2015, in Birmingham, Ala. A federal judge's order overturning the state's ban on gay marriage goes into effect on Monday, making Alabama the 37th state to allow gays and lesbians to wed. (AP Photo/Hal Yeager)
Susan DuBose, right, of Montgomery, Al., hugs her daughter Rebekah Monson, left, 34, of Miami, before Rebekah marries her partner of nine year, Andrea Vigil at the marriage license bureau, Tuesday, Jan. 6, 2015 in Miami. Miami-Dade Circuit Judge Sarah Zabel presided over Florida's first legally recognized same-sex marriages Monday afternoon. Still, most counties held off on official ceremonies until early Tuesday, when U.S. District Judge Robert L. Hinkle's ruling that Florida's same-sex marriage ban is unconstitutional took effect in all 67 counties. (AP Photo/Wilfredo Lee)
Shanté Wolfe, and Tori Sisson, camp out near the Montgomery County Courthouse Sunday, Feb. 8, 2015 in Montgomery, Ala. Wolfe and Sisson are planning to get married on Monday morning because they want to be the first couple to get married in Montgomery on Monday morning. (AP Photo/Brynn Anderson)
Shanté Wolfe, left and Tori Sisson embrace near the Montgomery County Courthouse, Sunday, Jan. 25, 2015, in Montgomery, Ala., where they plan to stay overnight to be married Monday morning. A federal judge has stayed her order overturning Alabama's gay marriage ban for two weeks. (AP Photo/Brynn Anderson)
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