On June 15, the Supreme Court's right wing majority dealt a heavy blow to the basic Constitutional right of a US citizen to maintain a lawful marriage relationship by upholding a consular visa officer's denial of an immigrant visa to her husband, a citizen of Afghanistan, without an adequate explanation. In two separate opinions, the five right wing justices ruled that the visa denial did not violate the US citizen spouse's right to due process of law.

Justice Breyer, in an carefully written and well reasoned dissent on behalf of the Court's four liberal justices, argued (against the plurality opinion of Justice Scalia) that the right of a US citizen to live together with her/his spouse without having to leave the US is a fundamental Constitutional right that is protected by the due process clause of the 14th Amendment.

Justice Breyer's dissent also rebutted the argument of Justice Kennedy in a concurring opinion (joined in by Justice Alito) that even if the US citizen wife had a due process right based on her marriage that was protected by the Constitution, the pro forma reason given by government for the visa denial was sufficient to satisfy due process requirements.

This case, once again, highlights the tension between fundamental constitutional rights of US citizens and the "plenary power" of Congress and the executive branch to decide who will be admitted to the United States and who will not. It also, needless to say, highlights the ideological differences between the Court's right wing majority and its liberal minority.

In this case, Kerry v. Din, a US citizen, Fauzia Din, had filed an I-130 immediate relative petition on behalf of her husband, Kanishka Berashk, an Afghan citizen and former civil servant under the Taliban regime. The petition was approved, but a US visa officer denied Berashk an immigrant visa under a statute making non-citizens who have engaged in "terrorist activities" excludible from the US.

No explanation was given as to what "terrorist activities" Barashk had allegedly engaged in (other than, presumably, having formerly been employed by the Taliban government). Ms. Din claimed that the lack of a more detailed explanation for the denial deprived her, without affording her due process of law, of her claimed right to request the U.S. State Department to conduct a discretionary review of the visa denial.

Justice Scalia, in a plurality (not majority) opinion joined in by Chief Justice Roberts and Justice Thomas, argued that Ms. Din had no constitutionally protected marriage rights that were being infringed by denying her husband a visa. In taking "originalism" back to an even earlier point in time than usual, Scalia was not content to rest on the normal argument of this school of thought that only the literal language of the Constitution, as written in the 18th century, should be controlling.

Instead, Justice Scalia went back a full 800 years (exactly) from the present to see if marriage rights were among those protected by the Magna Carta, issued in 1215. Not surprisingly, they were not listed in that document, for the obvious reason that the Magna Carta had nothing whatsoever to do with marriage issues. The Magna Carta was only concerned with defining the relationship between the king and his feudal barons.

If Justice Scalia had been more seriously interested in the legal history of marriage rights, he could have looked back to ancient Roman doctrine of ius conubii, which (according to Aldolf Berger's Encyclopedic Dictionary of Roman Law - 1953) was eventually extended to recognize the marriage rights of foreign, not only Roman, citizens.

However, deciding a 21st century Constitutional issue by looking at a list of rights contained in a 13th century document to see which ones were specifically mentioned as being protected cannot be called serious legal scholarship, because it ignores the fundamental meaning and purpose of this "Great Charter".

That purpose was not to enumerate specific rights as worthy or not worthy of protection, but in the words of Justice Breyer's dissent:

"These procedural protections help to guarantee that government will not make a decision directly affecting an individual arbitrarily but will do so through reasoned application of a rule of law. It is that rule of law, stretching back at least 800 years in Magna Carta, which in major part the Due Process clause seeks to protect." (Emphasis added, citation omitted.)

Moreover, even if not mentioned in that 800-year old document, marriage rights have been recognized by the Supreme Court in our own time as among the most fundamental legal and human rights known to our law. In Justice Breyer's words:

"As this court has long recognized, the institution of marriage, which encompasses the right of spouses to live together and raise a family, is central to human life,.."

To be continued in Part 2.
Roger Algase is a New York lawyer who has been helping skilled, professional and family-based immigrants with work visas and green cards for more than 30 years. He is a graduate of Harvard College and Harvard Law School, and a member of the bars of New York and New Jersey, as well as various federal district and circuit courts and the United States Supreme Court.

His practice is focused on H-1B specialty worker, O-1 outstanding achievement and L-1 intracompany transferee work permits and J-1 training visas; as well as green cards through Labor Certification, extraordinary ability and opposite sex or same sex marriage. Roger's email address is algaselex@gmail.com