U.S. Supreme Court

Woman claiming due-process right to live with Afghan spouse loses in SCOTUS; a gay marriage hint?

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The U.S. Supreme Court has ruled against an American citizen who challenged the denial of a visa to her husband, a citizen of Afghanistan who was a former civil servant in the Taliban regime.

The court ruled 5-4 (PDF) on Monday against Fauzia Din, who had claimed the government violated due process by denying her the right to live in the United States with her spouse without adequate explanation of the visa decision. In denying the visa, the U.S. government had cited a law barring visas for persons engaged in terrorist activities, but provided no details.

Five of the justices agreed that the explanation given for the denial of the visa satisfied due process.

Three of those justices—in Justice Antonin Scalia’s opinion announcing the court’s judgment—went further and said Din had no constitutional right to live in the United States with her spouse requiring an adequate explanation for the visa denial. The other two justices, in an opinion by Justice Anthony M. Kennedy, said the court didn’t need to decide whether Din had such a constitutional right because, if it existed, it was satisfied when the government notified Din’s husband of the visa denial.

Four dissenters, in an opinion by Justice Stephen G. Breyer, said Din had a liberty interest protected by the due process clause that was violated by the government’s explanation.

Din apparently sued because her husband—an unadmitted and nonresident alien—had no right to sue, Scalia said. His opinion was joined by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas. Kennedy’s opinion was joined by Justice Samuel A. Alito Jr. The case is Kerry v. Din.

According to the Althouse blog, the opinion could provide a hint in the pending gay-marriage case, Obergefell v. Hodges. Kennedy’s opinion in Kerry v. Din suggests that the U.S. Supreme Court will rule in favor of same-sex marriage based on equal protection, rather than a fundamental liberty interest in marriage through the due process clause, says University of Wisconsin law professor Ann Althouse in the blog post.

In Kerry v. Din, “Kennedy and Alito reveal a resistance to the topic of the fundamental liberty interest in marriage,” Althouse said. “They find it particularly difficult somehow or they worry about the repercussions if that aspect of due process is nailed down with a majority opinion. They search for other ways to resolve the case.

“And, in fact, in the same-sex marriage case, it was apparent at oral argument that the equal protection ground was a less complicated way to find the right in question.”

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