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"The majority's failure to respect the right to marriage in this country consigns U.S. citizens to rely on the fickle grace of other countries' immigration laws."
U.S. Supreme Court Justice Sonia Sotomayor warned Friday that her right-wing colleagues' finding that American citizens have no right to have their foreign spouses admitted to the United States will disproportionately harm same-sex couples—and could foreshadow a future reversal of federal LGBTQ+ marriage equality.
The justices ruled 6-3 along ideological lines in Department of State v. Muñoz that Sandra Muñoz, a civil rights attorney and U.S. citizen, "does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country."
As Courthouse News Serviceexplained:
[Muñoz] argued that her right to live with her noncitizen husband, Luis Ascencio-Cordero, in the United States was implicit in the "liberty" protected by the Fifth Amendment, and that denying his visa request deprived her of that liberty and violated her due process rights.
The consular officer who denied her husband's application violated her right to due process by not disclosing the reason her husband was deemed "inadmissible,'" which opens the officer's decision to judicial review, despite visa denials normally being unreviewable.
Muñoz later found out during litigation in federal court that the decision was based on the officer's finding that Ascencio-Cordero's tattoos were associated with the transnational gang MS-13 and his concern that he would commit crimes upon entering the country.
In her dissent, Sotomayor cited Obergefell v. Hodges, the landmark 2015 ruling legalizing same-sex marriage nationwide.
"The right to marry is fundamental as a matter of history and tradition," Sotomayor wrote. "The majority today chooses a broad holding on marriage over a narrow one on procedure."
Sotomayor contended that her conservative colleagues were committing the "same fatal error" in "requiring too 'careful [a] description of the asserted fundamental liberty interest'" as they did in Dobbs v. Jackson Women's Health Organization, the 2022 ruling that erased half a century of federal abortion rights.
"The majority's failure to respect the right to marriage in this country consigns U.S. citizens to rely on the fickle grace of other countries' immigration laws to vindicate one of the 'basic civil rights of man' and live alongside their spouses," she added. "Same-sex couples may be forced to relocate to countries that do not recognize same-sex marriage, or even those that criminalize homosexuality."
" Obergefell rejected what the majority does today as 'inconsistent with the approach this court has used in discussing fundamental rights' of 'marriage and intimacy'," Sotomayor opined. "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."
Sotomayor's assertion that the majority's decision erodes
LGBTQ+ marriage protections follows far-right Justice Clarence Thomas' suggestion in Dobbs that the high court should reexamine the right to same-sex marriage—and even the abolition of laws banning sexual relations between adults of the same sex—at some future date.
"While there is no doubt that the legalization of marriage for LGBTI couples is a key milestone for Thailand, much more must be done to guarantee full protection," said one campaigner.
LGBTQ+ advocates around the world on Tuesday cheered the Thai Senate's passage of a bill legalizing same-sex marriage, a move that—if approved by the country's king as expected—would make Thailand the first country in Southeast Asia to do so.
The Bangkok Postreported Thai senators voted 130-4, with 18 abstentions, in favor of a bill to legalize same-sex marriages in the country of 72 million people. The Thai House of Representatives overwhelmingly approved the legislation in March. The legislation would become law if it passes further review by the Senate and the Constitutional Court and is approved by King Rama X. Royal assent is a formality that will almost certainly be granted.
"The bill represents a monumental step forward for LGBTQ+ rights in Thailand," Panyaphon Phiphatkhunarnon, founder of the advocacy group Love Foundation, toldCNN.
Plaifa Kyoka Shodladd, an 18-year-old activist, toldThe New York Times that "after 20 years of trying to legalize this matter, finally, love wins."
In Asia, only Nepal and Taiwan have achieved same-sex marriage equality. Thailand would become the 39th nation to legalize same-sex marriage worldwide.
Legalization "would underscore Thailand's leadership in the region in promoting human rights and gender equality," said the Thai Civil Society Commission of Marriage Equality, Activists, and LGBTI+ Couples.
Amnesty International Thailand researcher Chanatip Tatiyakaroonwong said in a
statement: "Thailand has taken a historic step towards becoming the first country in Southeast Asia to legalize marriage for LGBTI couples. This landmark moment is a reward for the tireless work of activists, civil society organizations, and lawmakers who have fought for this victory."
"While there is no doubt that the legalization of marriage for LGBTI couples is a key milestone for Thailand, much more must be done to guarantee full protection of LGBTI people in the country," Chanatip continued. "LGBTI people in Thailand continue to face many forms of violence and discrimination, including but not limited to technology-facilitated gender-based violence, which often targets human rights defenders."
"Thai authorities must build on the momentum and take further steps that protect the rights and ensure the participation of LGBTI people and organizations," Chanatip added.
Thailand's imminent legalization of same-sex marriage equality stands in contrast with the hundreds of pieces of anti-LGBTQ+ legislation proposed or passed mostly in Republican-controlled state legislatures in the United States.
Advocates are also worried about the future of LGBTQ+ rights at the national level, as U.S. Supreme Court Justice Clarence Thomas suggested in Dobbs v. Jackson Women's Health Organization—the ruling that erased half a century of federal abortion rights—that the high court could reconsider cases including Obergefell v. Hodges, which in 2015 legalized same-sex marriage nationwide.
The problem for defenders of marriage equality and gay rights is that the moderate Obergefell majority has been supplanted by an ultra-right super majority.
Samuel Alito may not be the most corrupt member of the Supreme Court—that distinction goes to Clarence Thomas—but he is easily its most openly homophobic, misogynistic, and histrionic. His latest meltdown came in an unusual “written statement” (the functional equivalent of a dissenting opinion) issued on February 20 in a case on jury selection that the court declined to accept for full review, called Missouri Department of Corrections v. Finney. Alito used the statement not only to set forth his deeply flawed legal reasoning on jury selection, but as an opportunity to reiterate his longstanding critique of the constitutional right to same-sex marriage, a stance that has aligned him closely with the Christian nationalist movement that has taken over the Republican Party.
Jean Finney, the plaintiff in the case, is a longtime employee of the Department of Corrections (DOC) and a lesbian who, court records state, “presents herself as masculine.” She sued her employer, alleging the agency had created a hostile work environment and retaliated against her after she began dating a male co-worker’s former wife. During jury selection in her 2021 trial, her attorney asked prospective jurors a question that went to their capacity to be fair and impartial: “How many of you went to a religious organization growing up where it was taught that people that are homosexuals shouldn’t have the same rights as everyone else because it was a sin with what they did?”
The question was designed to identify individuals who would be prejudiced against Finney, and was one any competent lawyer would have raised. The trial judge subsequently excused two prospective jurors, one a pastor’s wife, who answered that according to the Bible, homosexuality is a sin. The jury returned a verdict in Finney’s favor, awarding her $275,000 in damages.
It is religious doctrine, not the Constitution, that drives Alito’s jurisprudence.
The DOC appealed, but the Missouri Court of Appeals affirmed the judgment, holding the jurors had been properly dismissed for cause, not because of their Christian faith—that would have been unconstitutional—but because of their views on homosexuality.
After the Missouri Supreme Court declined to review, the DOC filed a petition with the U.S. Supreme Court. All nine justices, including Alito, rejected the petition.
Normally, the high court’s rejection would have been expressed in a one-sentence order. But Alito deemed it necessary to pen a five-page written statement complaining about the disposition. Although he agreed that the DOC had not properly preserved the jurors’ dismissal as an issue for appeal, he explained that, but for this technicality, he would have voted to grant the petition. His reasoning, however, was off the rails and holds dangerous implications for the future of marriage equality and gay rights.
“In this case,” Alito wrote, “the court below reasoned that a person who still holds traditional religious views on questions of sexual morality is presumptively unfit to serve on a jury in a case involving a party who is a lesbian. That holding exemplifies the danger that I anticipated in Obergefell v. Hodges… (2015), namely, that Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be ‘labeled as bigots and treated as such’ by the government.”
Obergefell, which recognized same-sex marriage as a constitutional right under the 14th Amendment, is one of the few progressive opinions issued by the Supreme Court this century. However, only two of the justices who comprised the court’s slender five-member majority in that case—Sonia Sotomayor and Elena Kagan—remain on the bench. Three of the dissenters—Alito, Thomas, and Chief Justice John Roberts—also remain.
A brief survey of the dissenting opinions in Obergefell illustrates the depth of conservative opposition to the constitutional right to same-sex marriage. In his dissent, Roberts wrote: “The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this court’s precedent.”
Thomas noted in his: “The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.”
None protested as vociferously as Alito, who argued the issue of same-sex marriage should be deferred to the states. He wrote:
Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences. It will be used to vilify Americans who are unwilling to assent to the new orthodoxy… I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.
Since then, Alito has embarked on a mission to reverse Obergefell. As he argued in his infamous 2022 majority decision in Dobbs v. Jackson Women’s Health Organization, the landmark abortion case, the states should decide the fate of same-sex unions.
In 2020, he joined Thomas in a wildly emotional dissent from the court’s refusal to take up an appeal filed on behalf of Kim Davis, the former Rowan County, Kentucky, clerk who refused to issue licenses for gay marriages. The same year, in a speech delivered online to the Federalist Society, Alito complained that America is no longer “inclusive enough to tolerate those with unpopular religious beliefs” and that “religious liberty is fast becoming a disfavored right.”
As Linda Greenhouse observed in a 2022 column for The New York Times, it is religious doctrine, not the Constitution, that drives Alito’s jurisprudence. In a similar vein, New Yorker staff writer Margaret Talbot described Alito in a 2022 essay as a leading figure in the “crusade against a secular America,” animated by anger and an abiding sense of aggrievement.
The problem for defenders of marriage equality and gay rights is that the moderate Obergefell majority—which included Breyer, Kennedy, and Bader Ginsburg—has been supplanted by an ultra-right super majority. There is no telling when a new direct challenge to Obergefell will reach the Supreme Court. But sooner or later, one will. A majority of states still have bans on gay marriage on their books. Some, like Tennessee, which recently enacted a law permitting public officials, including judges, to refuse to perform same-sex marriages, could offer anti-gay litigants a direct path.
It took 49 years for the court to overrule Roe v. Wade. Obergefell, which has been the law for a mere nine, is far more vulnerable. Samuel Alito is eager to dispatch it to the dustbin.