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Court Tips Its Hand on Marriage?

Perhaps Justice Kennedy has sent an important signal that marriage as the union of man and woman will survive in America.

A ruling on marriage in a recent split decision by the Supreme Court in an immigration case may signal how it will rule very soon on same-sex marriage. The June 15 ruling in Kerry v. Din addressed whether Fauzia Din, a U.S. citizen, had a constitutional right to live with her husband in the United States, which the Immigration Service violated when it denied a visa to her husband, a member of the Taliban. 

The Court’s decision, written by Justice Antonin Scalia, joined by John Roberts and Clarence Thomas, stated that the line of cases defining implied fundamental rights does not automatically grant constitutional protection when a regulation touches on marriage, but requires that the interest be “objectively, deeply rooted in this nation’s history and tradition, and implicit in the concept of ordered liberty.” If the Court applies that standard when it rules whether same-sex marriage is a fundamental liberty, the definition of marriage should also be left to the states. 

Justices Anthony Kennedy and Samuel Alito did not join the Court liberals—Stephan Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan—who opined that the Constitution implies a liberty interest for Din to live in the United States with her husband.  Kennedy and Alito stated that the Immigration Service had followed existing law—all the process due under the Fifth Amendment.  Had either of those justices agreed with the liberal that a fundamental right was at stake, one would expect that they would have held the Immigration Service to a more definite statement of its basis for denying the visa.  

Alito is expected to line up with conservatives on gay marriage.  But Kennedy, who has authored important opinions protecting the rights of homosexuals, is regarded as the Court’s swing vote on same-sex marriage.  Kennedy’s decision to not join the liberals in identifying the right to live together in marriage as a fundamental right may signal that he will recognize that neither is homosexual marriage objectively, deeply rooted in this nation’s history and tradition, and implicit in the concept of ordered liberty.  Perhaps Justice Kennedy has sent an important signal that marriage as the union of man and woman will survive in America.

(Unless otherwise noted, the opinions expressed are the author’s and do not necessarily reflect the views of the American Family Association or American Family Radio.)

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