In a 6-3 decision along partisan lines the right-wing justices on the U.S. Supreme Court once again targeted the landmark 2015 Obergefell same-sex marriage decision, leading liberal Justice Sonia Sotomayor to sound “alarm bells” on marriage equality in her dissent a legal expert says, warning that they may try to “roll it back.”
The case involves Sandra Muñoz, a U.S. citizen who argued that the federal government’s denial of a visa for her husband, who lives in El Salvador, deprives her of her constitutionally protected right to liberty.
The right-wing majority in a decision written by Justice Amy Coney Barrett ruled: “A citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country.”
Friday’s ruling “undermines same-sex marriage,” Bloomberg Law reports Justice Sotomayor’s dissent warns.
Slate senior writer Mark Joseph Stern has covered the courts since 2013, and is the author of a 2019 book on the Roberts Supreme Court.
“Justice Sotomayor, in dissent, accuses the conservative supermajority of cutting back the rights guaranteed in Obergefell—the same-sex marriage decision—and of repeating ‘the same fatal error’ it made in Dobbs,” Stern writes. “A very ominous opinion.”
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The “fatal error” in Dobbs was ignoring precedent.
“Justice Sotomayor says the burden of today’s decision will ‘fall most heavily’ on same-sex couples, many of whom cannot safely reside in the non-citizen’s home country,” Stern adds. “Her dissent is littered with alarm bells about Obergefell.”
He points to this from Sotomayor’s dissent, a citation from the Obergefell decision:
“A traveler to the United States two centuries ago reported that ‘‘[t]here is certainly no country in the world where the tie of marriage is so much respected as in America.’ ‘ ”
“Today,” Sotomayor continued, “the majority fails to live up to that centuries-old promise. Muñoz may be able to live with her husband in El Salvador, but it will mean raising her U. S.-citizen child outside the United States. Others will be less fortunate. The burden will fall most heavily on same-sex couples and others who lack the ability, for legal or financial reasons, to make a home in the noncitizen spouse’s country of origin.”
Again quoting Obergefell, she adds, “For those couples, this Court’s vision of marriage as the ‘assurance that while both still live there will be someone to care for the other’ rings hollow.”
Stern warns: “I think Justice Sotomayor is clearly correct that the Supreme Court’s gratuitous attack on the constitutional rights of married couples in Muñoz—especially same-sex couples—suggests that the conservative justices hate Obergefell and may roll it back.”
Sotomayor began her dissent also with a quote from Obergefell: “The right to marry is fundamental as a matter of history and tradition.”
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She warns that the right-wing majority could have appropriately issued a narrow ruling but instead chose to hand down a broad decision:
“The majority could have resolved this case on narrow grounds under longstanding precedent,” she writes. “Instead, the majority today chooses a broad holding on marriage over a narrow one on procedure.”
Justice Sotomayor again points to same-sex marriage:
“Muñoz may be able to live in El Salvador alongside her husband or at least visit him there, but not everyone is sovereign lucky. The majority’s holding will also extend to those couples who, like the Lovings and the Obergefells, depend on American law for their marriages’ validity. Same-sex couples may be forced to relocate to countries that do not recognize same-sex marriage, or even those that criminalize homosexuality.”
She also noted, “The constitutional right to marriage has deep roots,” and “The constitutional right to marriage is not so flimsy,” while warning “the majority departs from longstanding precedent and gravely undervalues the right to marriage in the immigration context.”
Two years ago almost to the day, when the Supreme Court handed down the Dobbs decision overturning Roe v Wade and stripping away the constitutional right to abortion, Stern warned the Court, especially Justice Thomas, would come for contraception, same-sex intimacy, and same-sex marriage:
Two years before Dobbs, Stern also warned Justice Thomas was targeting same-sex marriage, writing that “Thomas (joined by Alito) wrote a jaw-dropping rant taking direct aim at Obergefell and suggesting that SCOTUS must overturn the right to marriage equality in order to protect free exercise.”
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