The Supreme Court’s Decision in Department of State v. Muñoz
The Supreme Court dealt a blow to the fundamental rights of married couples on Friday in an important and ominous immigration case, Department of State v. Muñoz. Justice Amy Coney Barrett held—over the dissent of all three liberals—that American citizens have no constitutional “liberty interest” in living with their foreign spouses, denying them the most basic protections against arbitrary government discrimination. Justice Sonia Sotomayor’s fierce dissent condemned Barrett’s opinion as, among other things, an unsubtle assault on marriage equality for LGBTQ+ Americans.
Discussion on the Muñoz Decision
On Saturday’s episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discussed the Muñoz decision and its alarming ramifications for the constitutional right to marry. Their conversation has been edited and condensed for clarity.
Dahlia Lithwick’s Perspective
This Case and Its Implications
Dahlia Lithwick: This is an important case about immigration law that’ll be devastating to a lot of binational families. Yet Justice Sotomayor also used her dissent to sound a four-alarm fire about the future of marriage equality. To start, can you talk about this case on its own terms?
- Sandra Muñoz, an American citizen, is married to Luis Asencio-Cordero, a citizen of El Salvador.
- They have a child together who is also an American citizen.
- Muñoz and her husband sought a visa for him to live with her in the United States.
- The State Department denied the visa without providing a reason.
- Muñoz sued and won at the 9th U.S. Circuit Court of Appeals, which recognized a constitutional liberty interest for American citizens to live in the U.S. with their immigrant spouses.
- The 9th Circuit ruled that the government violated this constitutional freedom and should have provided a reason for denying the visa.
Mark Joseph Stern’s Perspective
The Majority Opinion and Its Impact on Marriage Equality
So how does Justice Amy Coney Barrett’s majority opinion turn this case into an arrow aimed straight at the heart of marriage equality?
Barrett ruled against Muñoz and stated that there is no constitutional right for an American citizen “to live with her spouse in her country of citizenship.” This ruling undermines the constitutional right to marry and gives the government unchecked power in immigration cases.
Justice Gorsuch’s Concurrence
It’s worth noting that the court didn’t even need to get into this discussion of marital rights, correct? Justice Gorsuch has an uncharacteristically restrained, un-Gorsuch-y concurrence saying his conservative colleagues didn’t need to get that far.
Justice Gorsuch argues that the government had already provided Muñoz with the reason for denying the visa, making further discussion on marital rights unnecessary. He questions why the majority went beyond the facts of the case and suggests that they are using this case to undermine marriage rights.
Justice Sotomayor’s Dissent
The Threat to Marriage Equality
Let’s walk through the Sotomayor dissent, because it reads like an elegy for something that isn’t gone yet. She starts right out of the chute: “The right to marry is fundamental as a matter of history and tradition,” quoting Obergefell. She suggests that the majority is doing something to imperil Obergefell and even breaking a promise it made in the Dobbs decision. What is she mourning?
Justice Sotomayor is mourning the potential erosion of Obergefell and the threat it faces from the majority’s decision in this case. She argues that the majority’s ruling undermines the principles established in Obergefell and raises concerns about the court’s commitment to marriage equality.
The Importance of Living Together
Sotomayor emphasizes the right to live together as a key aspect of marriage. She references previous cases, such as Loving v. Virginia and Obergefell, where the Supreme Court recognized the importance of allowing couples to live together in their desired location. She argues that the majority’s ruling undermines this right and diminishes the protections afforded by marriage.
Disproportionate Impact on Same-Sex Couples
Justice Sotomayor seems to zero in on Obergefell for another reason, too—she’s worried the majority’s decision will have a disproportionate burden on same-sex couples. Why is that?
The majority suggests that if Muñoz wants to live with her husband, she can simply move to El Salvador. However, this option may not be available for many binational, same-sex couples. Same-sex marriage may not be legal or accepted in the country where one spouse resides, making it impossible for them to live together. Sotomayor argues that the majority’s ruling discriminates against same-sex couples and undermines their ability to have their marriages recognized and protected.
Potential Threat to Marriage Equality
It really does raise all the questions we discussed after Dobbs about what substantive due process was meant to protect, right? How families work, how marriages work, where you live, the ability to travel together. Is there any chance Sotomayor is overreacting?
Sotomayor’s concerns about the potential erosion of marriage equality are valid. The majority’s decision in this case, combined with recent rulings like Dobbs, raises questions about the court’s commitment to protecting fundamental rights. Sotomayor, along with Justices Kagan and Jackson, is sounding the alarm to highlight the potential threat to marriage equality at the Supreme Court.
Source: slate.com
