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Thursday, June 18, 2015

When One Case Becomes About Another: Kerry v. Din and the Same-Sex Marriage Litigation

ImmigrationProf Blog is hosting an interesting symposium on Kerry v. Din, a case about judicial review of visa denials.  The government denied a visa to a U.S. citizen's husband for reasons that remain obscure but have something to do with the government's claim he participated in terrorist activities.  The U.S. citizen sued to force the government to be more specific.  In Din, a fractured Court held that the government didn't need to be.  I'm particularly interested in Rachel Rosenbloom's contribution to the symposium, which, citing Kevin Johnson's recent SCOTUSblog post, explains that the case "ended up mostly being a forum for the justices to argue about the scope of due process protections related to marriage."  Given the "Court's current preoccupation with the question of same-sex marriage," the Court's treatment of Din isn't surprising.  But should it be troubling?

I'm not sure, but I think the question's an interesting one.  Rosenbloom, who focuses upon Justice Breyer's dissenting opinion in Din, writes, "It would be a shame if Justice Breyer's heavy reliance on marriage," which Justice Scalia's plurality opinion shared, "exerts too strong a force on the future litigation of consular review cases."  And so I wonder whether the Justices may have warped the doctrine in consular review cases by thinking about Din through the lens of the same-sex marriage litigation in Obergefell v. Hodges

It's not hard to rattle off reasons we'd want the Supreme Court to think about Obergefell when deciding Din.  If nothing else, it makes forecasting more fun.  (See, for example, Mark Joseph Stern's piece in Slate and Garrett Epps's piece for The Atlantic.)  Still, I can't shake the sense that there are real risks when one case becomes about another.  If I were Fauzia Din, I'd wonder whether I really got my day in court.  And if I were an immigration lawyer, I'd be frustrated with the Court's mangling (or, you might think, simply not answering) the question of consular non-reviewability before it.  Given the Court's law declaration function, it's probably inevitable that a controversial and high profile case like Obergefell will influence how the Justices think about other cases that seem unrelated.  But given the Court's law declaration function, we might hope for judicial resistance to the impulse to debate in one case what the law's going to be in another. 

Posted by Seth Davis on June 18, 2015 at 04:42 PM | Permalink

Comments

I haven't been able to read the case quite as carefully as I would like to before commenting on it (I've been traveling) but, despite what's been suggested, I think the marriage aspect is, or should be seen to be, central to this case, not as side issue. For any due process case, of course, we have to ask what process is due, given the right in question. Typically, non-citizens are taken to have no right to enter the US (or any country) and no right to a visa. This is one of the reasons (though not the only one) why it's been held that essentially no process is due when a visa is denied - if there's no right, there's been no deprivation of a right, and so no process is due. But, in a case like this, there is a current insider (usually a citizen) involved, and, as I have argued, it's plausible to think that in the case of marriage, the "insider" has a right against his or her own country to bring in her or his partner. It's not an absolute right, of course, but a strong enough one that it should ground some serious sort of due process. If we didn't have the "insider" here (the spouse), then the claim for the right would be much weaker. Given this, the "marriage" aspect seems plausibly to be pretty central to me.

(Of course, if you think there is a fundamental right to free movement, then you'll think there's an important right here in any case, but that's obviously a legal loser, and I don't think it's a strong position in any case.)

Posted by: Matt | Jun 18, 2015 6:40:51 PM

Hmm, the link I meant to put in didn't seem to take, so the paper I reference is here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1641346

Posted by: Matt | Jun 18, 2015 9:48:27 PM

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