Did Antonin Scalia Just Signal He Has Lost On Marriage Equality?

While we wait for the Supreme Court to issue its ruling on marriage equality, everyone is looking for clues that might offer a clue about how the Court will side on the issue. An intriguing hint has emerged from a Court ruling involving a visa application by a heterosexual married couple, in which Antonin Scalia, the most metaphorically vociferous opponent of marriage equality, seems to be setting up a line of defense for when marriage equality becomes the law of the land.

The case involves a naturalized American citizen, Fauzia Din, who sought to bring her husband to the U.S. on a visa. Din’s husband, Kanishka Berashk, was an Afghan civil servant, and the visa application was denied. Officials cited a statute about terrorism activity, without making any accusation against Berashk. By a 5-4 ruling, the Supreme Court said that the government is not required to provide any further explanation for keeping Din and her husband separated.

However, Scalia wrote a separate concurring opinion (joined by Chief Justice John Roberts and Justice Samuel Alito) in which he said being married is the limit of what the government has to respect. No one, Scalia wrote, has a “free-floating and categorical liberty interest in marriage … sufficient to trigger constitutional protection whenever a regulation in any way touches upon an aspect of the marital relationship.” Reunification of spouses, Scalia said, was “a matter of legislative grace rather than fundamental right.”

In short, Scalia is trying to limit the right to marry to just that–the right to marry. Adoption by married couples, for example, is a separate issue. Scalia argues that unless something is “deeply rooted” in American tradition, the Court will need to be shown exactly how it is a fundamental right. And guess what’s not exactly rooted in American tradition.

Scalia’s reasoning could be used by opponents of same-sex marriage who want to define it as narrowly as possible. Being married wouldn’t necessarily grant you other rights, like protection from vendor discrimination or parental rights. You would have to prove those separately.

It’s an argument that will provide comfort to opponents of marriage equality. But it may be cold comfort. If Scalia is trying to build a barbed-wire fence around marriage, it could very well be because he knows where the Court is headed. He’s trying to provide legal ammunition to lessen the impact of a sweeping ruling. We’ll know soon enough but it’s one more sign that opponents of marriage equality should prepare themselves for the worst.

H/t: Garrett Epps