Sotomayor: Ruling against foreign spouses will 'most heavily' harm same-sex couples

Brett Wilkins, Common Dreams
June 22, 2024 

Justice Sonia Sotomayor. (Commonwealth Club/Flickr)

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 Service explained:

[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.