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