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Why the Supreme Court’s “Decision” In a Spouse Immigration Case Is No Decision At All

June 16, 2015

The Federal Supreme Court has been guilty of grandstanding lately, and there is no member of that court with more illusions of grandiosity than Scalia, who just issued an “opinion” that many are taking to imply that there is no fundamental right to marry in the United States, a mere trivializing of the so-called importance of the Federal Supreme Court. It’s always saddened me that the Supreme Court, and a majority of courts in the US, now act as arbiters of moral standing in the US. There should be no morality in a court, because morality is generally a religious based concept. Adding a concept of morals to a court decision means adding a religious sentiment that should never intrude into a court’s purview. Once the courts start talking about marriage, the issue of morality always comes into play. It’s sugar-coated, to be sure, de-emphasized as lacking fundamental rights protection, as in Kerry v. Din, and then hailed as saving the nation or in need of protection from the religious right–it’s a hall no secular court should darken.

The Federal Supreme Court’s “review” of marriage, which is a religious-based concept is repugnant as it is. The fact that in the Kerry, Secretary of State v. Din, the Supreme Court offered no real new decision, only affirming that spouses don’t have the rights to challenge what is essentially a criminal conviction of their married partner. Kerry, Secretary of State v. Din is a grandstanding decision. It’s not a real decision. It took no sound legal mind to deduce that a spouse doesn’t get access to all of her accused-terroritst-husband’s records from the feds. Terrorist plots, like treason, are a storm unto their own. If there was any “decision” in there, it should be described as the process for dealing with a would-be terrorist, not anything related to marriage.

Of course, the Kerry v. Din case is really just a preview, in some opinions, regarding the right to gay marriage, with the argument being that if marriage isn’t a fundamental right, then neither is gay marriage, and then things get mushy.

But Monday at the U.S. Supreme Court the connection was visible, at least in a plurality opinion by Justice Antonin Scalia. In a fractured decision, the court held that Fauzia Din, an American citizen, couldn’t get a hearing in court after the State Department refused a visa to her husband, an Afghan national, citing terrorism as the reason. According to Scalia, there’s no constitutional “liberty interest in marriage” sufficient to give Din a hearing over her husband’s denial — a position that foreshadows what Scalia will certainly say when the court rules on same-sex marriage in the next couple of weeks.

Here is where the courts have made a mistake in wading into the marriage abyss: marriage is so often defined by religion that by deciding cases on marriage, the court can’t help but wade into religious grounds. Of course, people like to separate Scalia’s phrase to say there is no liberty interest in marriage at all rather than no liberty interest in a spouse’s right to question a government’s determination of a partner’s terrorist activities. It’s a big distinction in the phrasing there. Scalia may not be saying there is no liberty interest in marriage, just that there is no liberty interest in terrorist activities coupled with marriage. That is the part that really is a no-brainer. Since when have married partners ever had a say in whether or not their spouses were charged with terrorist-related charges? Now comes the marriage circus, and the grandstanding involved in issuing the Kerry v. Din decision that isn’t any real precedent whatsoever but still served to put Scalia where whines to be, in the spotlight.

People then obsess over questions of marriage instead of ignoring the embarrassing plea for attention that is Kerry v. Din. Scalia isn’t the only one who should have remained on a stage for his love affair with the spotlight, other justices joined in, too. Let the show begin. It’s all lights and no substance.

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