Divided SCOTUS analyzes marriage liberty interests in consular processing case before deciding Obergefell

The U.S. Supreme Court issued an opinion yesterday in a case we discussed in February, dealing with the rights of  U.S. spouses petitioning for their non-citizen spouses to join them in the U.S. To recap, the case involved Fauzia Din, a U.S. citizen who attempted to bring her spouse, a citizen of Afghanistan, to the U.S. in 2006. Din's petition was approved, but a U.S. consular official in Pakistan denied the issuance of a visa to Din's husband. After inquiring with her congressman, Din learned that the denial had been for unspecified "terrorist activities," but could not get further information.

Din argued that this infringed on her fundamental rights relating to marriage, violating procedural due process guarantees. The Ninth Circuit agreed with Din's petition, and the government appealed. In a 5-4 decision, the Supreme Court reversed the Ninth Circuit, finding that the rejection of her husband's visa application did not unconstitutionally impinge on Din's rights.

There was no majority opinion in the case, but Justice Scalia announced the ruling for the Court and authored an opinion in which Chief Justice Roberts and Justice Thomas joined. Justice Kennedy wrote a concurring opinion joined by Justice Alito, and Justice Breyer penned a dissent which was joined by Justices Ginsburg, Sotomayor and Kagan. According to SCOTUS Blog, the most notable aspect of the case may not be in the ruling itself, but in a foreshadowing of the Court's decision on the same-sex marriage case, reflecting a court divided on marriage liberty issues.

Justice Scalia disagreed that Din had a liberty interest in her husband obtaining a visa, but acknowledged the Court has previously "expand(ed) the meaning of liberty... to include certain implied 'fundamental rights.'"  Scalia wrote, however, that, "Even if we might “imply” a liberty interest in marriage generally speaking, that must give way when there is a tradition denying the specific application of that general interest." Scalia argued that the long tradition of regulations on immigrating spouses precluded any interest Din might have.

Justice Kennedy did not directly address whether Din had a liberty interest at stake, but stated that, "assuming she does, the notice she received regarding her husband’s visa denial satisfied due process.” Justice Breyer found that Din had a liberty interest that should be protected by procedural due process guarantees, and that the brief explanation offered in the decision of the consular officer in this case was not adequate to protect these interests.

These opinions may reflect the Justices views on marriage liberty issues in other contexts, such as Obergefell v. Hodges, with Justices Scalia, Roberts and Thomas taking a hard line against such an interest, Justices Breyer, Ginsburg, Sotomayor and Kagan finding such an interest exists and Justices Kennedy and Alito falling somewhere in the middle. The ABA Journal cites Althouse, a law professor's blog, as speculating that Kennedy's opinion hints that the Court may find same-sex marriage bans violate equal protection guarantees without finding a fundamental liberty interest in marriage.

According to SCOTUS Blog, the case is also notable in that six Justices undertook some review of the consular officer's decision, perhaps softening the position on judicial review of these immigration decisions, which had been found non-reviewable by earlier cases.