Dec 18, 2023; Washington DC; Supreme Court Justice Sonia Sotomayor speaks during a private service for retired Supreme Court Justice Sandra Day O’Connor in the Great Hall of the Supreme Court in Washington Photo: Jacquelyn Martin/Pool via USA TODAY NETWORK
Supreme Court Justice Sonia Sotomayor has issued what one Court analyst calls a “clarion call” to Americans worried about the state of personal liberty in the United States.
The warning comes in the dissent of a new ruling by five of the six same justices who reversed Roe v. Wade two years ago this week in its 2022 Dobbs v. Jackson Women’s Health Organization decision that eliminated the federal right to an abortion.
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In the just-decided immigration case, the majority opinion written by Trump-appointed Justice Amy Coney Barrett relies on a narrow decision that the Supreme Court issued in 1997 about the interests of a spouse, rather than the landmark 2015 ruling Obergefell v. Hodges, affirming the right to marriage equality in all 50 states, says Joan Biskupic, a Supreme Court analyst for CNN.
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The Dobbs majority has pointedly asserted that its elimination of abortion rights in the case overturning Roe v. Wade “does not undermine… in any way” other entrenched rights, such as those involving contraception or marriage, Justice Sotomayor wrote.
Despite that assurance, “the Court fails at the first pass,” she says.
The case decided was ostensibly one centered on immigration and standing. A U.S. citizen petitioned to have her husband admitted to the country over objections from State Department officials who said they suspected he was a member of the transnational MS-13 gang. The husband has maintained that he is not associated with that criminal gang or any other.
The constitutional question, says Biskupic, was whether a U.S. citizen has a fundamental liberty interest in their noncitizen spouse being admitted to the United States. The Supreme Court case was an appeal by the Biden administration after a Court of Appeals ruled that there is a constitutionally protected liberty interest in such a situation.
Barrett’s opinion relied on the federal government’s long-standing authority to decide the admission and exclusion of noncitizens but went further, using the 1997 case to establish the absence of a “history and tradition” of any right to bring a spouse into the country.
It’s the same argument the Dobbs majority used in that case, and one that could be employed—as Justice Clarence Thomas has notoriously written—in the reversal of marriage equality, interracial marriage, and the right to contraception, among other personal freedoms.
“To be clear: Today’s decision does not remotely call into question any precedent of this Court, including those protecting marriage as a fundamental right,” Barrett asserted in the majority opinion.
She called Sotomayor’s dissent “the rhetorically easier path of charging the Court” with undermining the fundamental right to marriage—now and potentially in the future.
For Sotomayor and Justices Elena Kagen and Ketanji Brown Jackson, Barrett’s approach—avoiding Obergefell—turned what could have been a narrow procedural decision into “a broad holding on marriage.”
Sotomayor called the 1997 case of Washington v. Glucksberg, which tested and rejected a constitutional right to physician-assisted suicide, less protective than the historic Obergefell ruling.
“Almost 10 years ago, this Court vindicated the expansiveness of the right to marriage,” Sotomayor wrote. “It upheld the right of James Obergefell and his terminally ill husband, John Arthur, to have their marriage from Maryland recognized in Ohio. Rejecting the idea that Ohio can erase Obergefell’s marriage to John Arthur for all time by declining to place Obergefell as the surviving spouse on Arthur’s death certificate, this Court reasoned that marriage is a right older than the Bill of Rights.”
It’s reasoning that may not withstand what the three liberal justices called in a case last year, stripping colleges of the right to affirmative action in their admissions, the “reckless course” of the Court’s Trump-appointed conservative majority.
