Did Nino just tip his hand on same-sex marriage? (corrected)


gavelThe U.S. Supreme Court issued three opinions this morning, none of them the landmark decisions that we are all waiting on.

Justice Antonin “Nino” Scalia wrote the 5-4 opinion in an immigration appeal, Kerry v. Din (.pdf), a case in which a U.S. citizen had challenged the denial of a visa to her non-citizen spouse. Justice Kennedy joined the majority, but wrote a separate concurring opinion which says that there is no need to decide whether Din has a protected liberty interest; even if she does, the notice she received satisfied due process.

In following the Live Blog of opinions at SCOTUSblog this morning, this post by Chris caught my attention: “Scalia’s opinion in Din reads more like a concurrence or dissent. It’s oddly more personal than normal.” Nino being bitter is not that unusual, but normally in a dissent, not a majority opinion that he wrote. What’s up?

For those of you reading tea leaves from the Justices, Looking for clues to Supreme Court’s final rulings in Ginsburg’s good mood, and Justices’ Words Combed for Clues on Major Pending Decisions, this comment from Chris may be more telling.

Ian Millhiser at Think Progress explains, Justice Scalia Turns Obscure Case Into A Proxy War Over Marriage Equality:

Justice Antonin Scalia, along with two of his conservative brethren, used a largely unnoticed immigration case to offer an implicit rant against marriage equality. Though his opinion never mentions same-sex marriage or the rights of LGBT Americans directly, it is hard to imagine that Scalia did not have the battle over marriage equality on his mind when he wrote the plurality opinion in Kerry v. Din.

Din was not an especially closely watched case this Supreme Court term. It involves a “former civil servant in the Taliban regime” who is married to a United States citizen, yet was denied a visa to immigrate to this country. For six of the justices, it also turned on a fairly minor and technical question. Justice Stephen Breyer, joined by his fellow Democratic appointees, wrote that the federal government owed this man, Kanishka Berashk, a more complete explanation of why he was denied a visa. Justice Anthony Kennedy, joined only by Justice Samuel Alito, wrote what lower courts will probably view as the controlling opinion in this case. Kennedy concluded that the federal government’s citation to a law “prohibiting the issuance of visas to persons who engage in terrorist activities” was all the explanation Mr. Berashk and his wife were entitled to.

That left Justice Scalia who, joined by Chief Justice John Roberts and Justice Clarence Thomas, transformed this seemingly minor case into a sweeping refutation of the idea that marriage rights can be expanded beyond their historic bounds.

* * *

On the surface, Scalia’s opinion hews to the issue presented by Din without mentioning marriage equality at all. Yet his dismissive take on Din’s legal arguments would be harmful to the cause of marriage equality if they were ever adopted by a majority of the Court. “Nothing in the cases Din cites,” Scalia says, “establishes a free-floating and categorical liberty interest in marriage (or any other formulation Din offers) sufficient to trigger constitutional protection whenever a regulation in any way touches upon an aspect of the marital relationship.” Instead, Scalia writes that this case is controlled by the Court’s decision in Washington v. Glucksberg, which tied the scope of many constitutional rights to “this Nation’s history and practice.”

“Even if we might ‘imply’ a liberty interest in marriage generally speaking,” Scalia writes, “that must give way when there is a tradition denying the specific application of that general interest.”

[Nino, per usual, is wrong: 14 Supreme Court Cases: Marriage is a Fundamental Right]

In Din’s case, Scalia cites a bevy of early twentieth century laws, many of which unconstitutionally discriminated against U.S. citizen women, to justify the proposition that a wife’s right to live in the United States with her non-citizen husband is not rooted in America’s legal tradition. Yet his attempt to tie the scope of the marriage right to history and tradition has obvious echoes in the marriage equality debate.

* * *

To be sure, gay rights attorneys have other arguments at their fingertips beyond the claim that their clients are protected by a constitutional right to marry — including a very strong claim that dening marriage equality to same-sex couples violates the Constitution’s ban on many forms of discrimination. Nevertheless, if marriage rights are fixed in place according to past generations’ frequently abusive treatment of LGBT Americans, then marriage equality is a lost cause.

The good news for same-sex couples is that Scalia’s opinion was only joined by himself and two other justices. All five of the votes that supporters of marriage equality need to prevail — Kennedy and the four liberals — either wrote separate concurring opinions or joined the dissent. If anything, in other words, Din may give marriage equality’s proponents some additional cause for hope, as no one joined Scalia’s opinion who wasn’t already expected to vote against equality.

This parlor game of reading tea leaves may be fun, but we will know the answer soon enough. The Court is down to 17 opinions to be announced in the next 15 days. Buckle up, the opinions are about to come fast and furious over the next two weeks.

Note: The post has been corrected for Scalia’s nickname. I don’t know how that happened, I knew that. I guess this is one of those “senior moments” I have been warned about.


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