In last week’s decision in Department of State v. Muñoz, the Supreme Court ruled unanimously against an American citizen who challenged the denial of a visa to her noncitizen husband. Justice Barrett’s majority opinion embraced the position set forth by Solicitor General Elizabeth Prelogar in the Department of State’s brief. As SG Prelogar put it, “Sandra Muñoz does not have a protected liberty interest in the visa application of her noncitizen spouse”:
The court of appeals was also wrong to describe the relevant interest as a corollary of the fundamental right to marriage. The government has not attempted to forbid, delegitimize, or otherwise regulate [Muñoz’s] marriage. Instead, it has enforced a wholly unrelated immigration restriction: the bar on admitting noncitizens who will engage in unlawful activity in the United States….
The suggestion that a U.S. citizen has an inherent right to have her noncitizen spouse admitted to the country clashes with the long-established principle that a sovereign nation has inherent power to exclude or admit foreigners on such terms and conditions as it may prescribe. That principle was familiar to the Founders. And it has been recognized by this Court for over a hundred years…. [Citations omitted.]
Muñoz’s fundamental right to marry does not entail the very different right to compel the United States to admit her noncitizen spouse.
In her opinion, Barrett likewise makes clear that the case does not involve the “fundamental right of marriage” that Muñoz confusedly invokes:
[T]he State Department does not deny that Muñoz (who is already married) has a fundamental right to marriage. Muñoz claims something distinct: the right to reside with her noncitizen spouse in the United States. That involves more than marriage and more than spousal cohabitation—it includes the right to have her noncitizen husband enter (and remain in) the United States.
Barrett rules against Muñoz on the same ground that the Department of State urged: that Muñoz does not have a constitutional “right to bring her noncitizen spouse to the United States.”
In her opinion concurring in the judgment (which she mislabels a dissent), Justice Sotomayor, joined by Justices Kagan and Jackson, vigorously objects that Barrett “chooses a broad holding on marriage over a narrow one on procedure.” Sotomayor’s objection is weak in one respect and brazenly wrong in another. As Sotomayor acknowledges in a footnote, Barrett rules on the threshold, logically prior question. More importantly for our purposes, Barrett’s narrow holding that a citizen does not have a constitutional right to bring a noncitizen spouse to the United States—again, exactly the position the Biden administration urged—is not a “holding on marriage” at all, much less a “broad holding.”
But Sotomayor is just getting started. Sotomayor spends three or four pages misleading the sloppy reader into thinking that the Court’s 2015 ruling in Obergefell v. Hodges, which posited a constitutional right to same-sex marriage, might somehow be undermined by Barrett’s opinion.
Taking the baton from Sotomayor, the Washington Post’s Ruth Marcus makes the imaginary concern even more explicit in a column with the ridiculous clickbait title “Are the justices re-examining same-sex marriage?” Marcus doesn’t mention the Biden administration’s position in the case. She ends her column by contending: “That the liberal justices are nervous should worry us all.”
But unless you believe that Sotomayor is very stupid (I certainly don’t), it’s far more plausible that she is playing to the political grandstands than that she is at all “nervous.”