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.
How about we take this to the next level?
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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
Eric Erickson
After Windsor and the expansion of marriage rights over the past 2 years, it would be hard to see a non-win for gay rights. The best the Right can hope for is that marriages are recognized, but not performed in every state.
1EqualityUSA
Animus. He should recuse himself, as his hostility is not even subtle.
Robby Robinson
Agree
JackT
“…looking for clues that might offer a clue….” More quality Queerty writing, I see.
Kenneth Fallows
Some would call it “judicial indiscretion!”
Realitycheck
Greta Scalia! The wicked & ugly yet cleverly perversed witch of the west!!!
@Eric Erickson: At most that would be a delaying tactic, I really hope the Supreme Court has more balls then that.
jason smeds
Scalia is not a friend of the gay community, and never will be.
Dakotahgeo
This can only be construed as a GOOD thing! Anything Scalia wavers on is GOOD!
Maleko
@1EqualityUSA:
He has been openly speaking at public functions about hos wrong it is to give any special protections to gay; why start a new class of special citizens. He even sounds hateful in some of his speeches. He has clearly stated that he is opposed to giving any ‘special protection’ to the gay and lesbian community; since he has already made up his mind, by his own admission, is must recuse himself on such matters. If a lower court judge was of the same mind as Scalia, and didn’t recuse him/her self, it’s likely that his colleagues on the bench would pressure him very vigorously to recuse himself. Or upon appeal to a higher court by the ‘offended’ person(s) in court would ask for and order to have him removed from the case; it’s does happen. Because he is on the United States Supreme Court, the court of last resort, there is nothing to force him to recuse himself, although we all know how he will rule before hand. Sigh
DarkZephyr
LOL I sure do love a good clue that offers a clue!
Gary_Gans
@1EqualityUSA: He should recuse himself, as he holds a prejudice against us. He can’t go into any discussion with impartiality in reference to the LGBT.
Arcamenel
@JackT: Thanks for the laugh.
MarionPaige
the question of recusal is left to the judge in question. There is no “pressure from colleagues” recognized in law. It is the classic catch 22: a judge is required to recuse himself at the appearance of bias but the decision that there is an appearance of bias is left to the judge. While the decision NOT to recuse can be appealed, it is not clear where one would appeal a decision by a Supreme Court Justice not to recuse.
OFF HAND, I would guess that Supreme Court Justices have an “understanding” that the decision to recuse or not to recuse is absolutely at the discretion of the Justice in question.
I saw an “interesting” decision once that said if all of the judges in a district have a bias, then, anyone of the judges in the district can hear the case (this was at the federal district court level)
HankBenson
“Scalia argues that unless something is “deeply rooted” in American tradition…”
That IS the problem in a nutshell! So much for the “Separation of Church and State”!
Two hundred years ago there was no “tradition”! And you can always have a “tradition” after a few years of doing the same thing. Do we want to have conscription, women suppression, or do I dare say slavery back because once they were “traditions”?
TheAngryFag
@1EqualityUSA:
You assume he has ethics. Scalia and Thomas have proven they are not ethical judges.
Desert Boy
I just can’t guess the tea leaves. This is the most important SCOTUS decision in my lifetime and I’m a nervous wreck. The end of June can’t come soon enough.
Chris
I think that this is over-interpretation of Scalia’s reasoning. Marriage is presumed to bring with, almost automatically, a wide range of benefits. Some of them are enshrined in law (e.g., your spouse jumps to the front of the line for getting a green card; or in some states, your spouse has homestead rights to the house you live in, even if the deed does not include that person’s name). Others are based on work-place policies (e.g., you can include your spouse in your health insurance plan at some extra cost). And others are based on tradition and custom (e.g., a wedding invite almost always will automatically include your spouse).
Here is a case where immigration law and policy actually stops a benefit that is thought to accrue to someone who is married to a U.S. citizen. I read Scalia’s text as reminding people that all the purported benefits of marriage are not automatic; they are tied to existing law and customs.
I cannot see how this can be used to discriminate against gay married-couples because, assuming gay folk get the right to marry one another, their marriages will have to be treated the same as are hetero marriages…….and that will include gay divorces, I might add.
lykeitiz
@JackT: @DarkZephyr: I really hope we win marriage so that anyone can have a marriage!
GG
“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.”
According to your statement, judge, ownership of others is a right since slavery is a deeply rooted American tradition. Keeping women from the vote is a right since such denial is a deeply rooted American tradition. Further, don’t think for a minute that we can’t see the impossibility of your formulation of the task you are asking of those seeking their civil rights: How can anyone possibly show the court exactly how something is a fundamental right when you’ve already stated the grounds for doing so are that the right needs to be a “deeply rooted” American tradition? Also, the burden in such cases does not lie with the plaintiffs as would usually be the case, but rather with the prohibiting entity. It is that entity who must justify it’s discriminatory actions to the court. Nice try, though.
And since you know exactly what you are doing, your words–which are now part of history–will be taught in university law classes in how to spot a judge who holds his own biases above any law or constitution. A legacy of which I’m sure your descendants will be proud.
The right in question here is not one of SSM, but of the freedom to be able to make one’s own life choices. This right already exists. When the SCOTUS strikes down same-sex marriage bans, it will not be creating a new right, it will be demolishing barricades that prohibited a certain group of Americans from enjoying an already-existing right. So, you see, judge, there exists no need for the plaintiffs to ‘show the court exactly how it is a fundamental right.’
You lose.
Dakotahgeo
@GG: AMEN, and AMEN! THANK YOU!
tricky ricky
@JackT: the same thing has been said in other articles on other sites.
tricky ricky
scalia always gets extra pissy in his opinions when he loses on another one.
SteveDenver
Scalia is such a crusty old butt plug. I do wish he would keel over… and fall from great height onto Roberts and Thomas.
Curtispsf
A clue that offers a CLUE is CLUELESS.
Celtic
@1EqualityUSA: Scalia should recuse himself from SCOTUS permanently. The man is a myopic judicial thug who believes the U.S. Constitution supports only what Scalia believes and believes in. SCOTUS has become a narrow-lens operative that kowtows to the rich and powerful with total deference toward the Constitution. Scalia is a rabid ultraconservative Roman Catholic who should have lived in the Dark Ages; not in our 21st Century World.
Jerry12
Of what possible concern is it of some pollotician who I sleep with at night, or if I sleep alone? The ideas of the Religious Right are not supposed to be related to their Law Making. On the Contrary, Religions are no different than any other business enterprise in the country. If one BUYS a Religion; SO WHAT? Does that mean the everyone must buy one?
Brandon E Donovan
Oh my gosh I hope so!
Curty
I think its going to be 5-4 again but not sure which way. I think they may say same sex couples have a right to vote but may leave it up to the states or even congress to act making it a federal law. Another thing they could do is vote yes that gay couples have the right to marry even in states that don’t have gay marriage, thus making it national. With 37 states and public opinion shifting they may just vote yes, and yes for the two questions. But I think personally they will vote yes for marriage but no for every state to have to perform or recognize them.
Giancarlo85
No. It won’t be 5-4. Many analysts say 6-3 in favor. Why? Look at the rulings against extensions of stays in Florida for example. That decision was 7-2. And I doubt they’ll say leave it up to the states. This has gone too far to make a ruling like that one.
“But I think personally they will vote yes for marriage but no for every state to have to perform or recognize them.”
Last year they could have done that, but again… it’s gone too far and they rejected to many appeals in the process. They already set the precedent. They can’t kick the can any further.
jwtraveler
I’m no legal scholar, but it sounds as if he’s saying that the marital relationship is the limit of what the government has to respect. Therefore, if gay marriage is legalized nationwide, the states would have to recognize the marriages of gay couples, but not have to afford those couples any other legal protections. Sounds like a Pyrrhic victory to me. But again, I’m no expert and it remains to be seen what the court will decide and how the states will handle it.
Chris Di Re
I think she should be off for a lot more reasons than that. But I do not see how this is similar
pjm1
There are two issues the Supremes will rule on.
The first is whether it is unconstitutional to deny same gender couples the right to marry. That is,
do we have marriage equality in all 50 states. My opinion is that the Supremes will say we do have
a right to marry in all 50 states, etc. At a minimum, we will win that with a 5-4 vote. I think it is likely
that Roberts will join and make it 6-3.
The second issue is whether state B must recognize the same sex marriages of state A. I think that
will be at least a 7-2 win. There is an outside chance Thomas joins the majority. Of course, if I am correct
in the first proposition above then this second part is not as important. But if somehow the Supremes ruled
no right to marry in part I, this becomes incredibly important as everyone could come to get married in California and
their home state (Kentucky, Arkansas, Texas) would have to recognize it.
DuMaurier
It’s hard for me to see how marriage equality wouldn’t almost automatically play out to include all rights currently enjoyed by straight couples; but protection against “vendor discrimination” isn’t a constitutional right for anyone, gay or straight, black or white, male or female. It’s based on legislation, which is why a Federal non-discrimination act is required that will include LGBT persons.
Blackceo
@JackT:
LMAO. I needed that laugh. I am the grammar police so I noticed that as well.
James
I think everyone wishes that fat ugly italian catholic bigot scalia would just have a heart attack and die so the rest of the world can be rid of his sick mind.
1EqualityUSA
Republicans stack the deck with these bigots. Let’s not let this happen ever again.
Chris Di Re
Marriage isn’t a right. Not for anyone
Giancarlo85
@Chris Di Re: Wrong. It is a right. Just take a look at legal cases, such as Loving V Virginia.
Sluggo2007
Go home and twirl your pasta, Scalia.