Wednesday, June 17, 2015

The Same-Sex Marriage Implications of Kerry v. Din


By Michael Dorf

My latest Verdict column discusses Monday's Supreme Court ruling in Kerry v. Din. I am highly critical of the bottom line: The U.S. government denied an entry visa to the spouse of a U.S. citizen without providing any factual explanation, simply pointing to a broad statute, but five Justices found no procedural due process violation. As I explain in the column, the plurality opinion of Justice Scalia is cruelly formalistic. He says that procedural due process protections aren't triggered at all because the government isn't denying the respondent and her husband the right to marry; it's only denying them the ability to live together in the country of her citizenship. It would be too easy to quote Anatole France here, so I won't.

Meanwhile, in the course of the column, I note but don't comment on the potential implications of the plurality opinion for same-sex marriage. Here I'll just note the obvious: the plurality can be understood as an invitation to anti-SSM states to sabotage the (presumably) coming ruling in Obergefell v. Hodges by permitting same-sex couples to marry but then denying them many of the usual incidents of marriage. It's possible that the Scalia plurality was not intended that way but the possibility that it was is so clear on the face of the opinion that one can only wonder what it implies about the views of Chief Justice Roberts, who, along with Justice Thomas, joined the Scalia plurality.

If I were trying to make money by predicting the vote in Obergefell, I would downgrade the likelihood of CJ Roberts voting to find a right to SSM from about 45% (which is where I had it after the oral argument) to about 30%. Meanwhile, I would upgrade the likelihood of a pro-SSM vote from Justice Alito (who joined Justice Kennedy's more moderate concurrence in the judgment rather than the Scalia plurality in Din) from about 5% to about 10%. But gamblers beware: These numbers are based on nothing but speculation and do not constitute either legal advice or investment advice!