SOCIETY / JUNE 25, 2024

The Supreme Court Just Took Its First Swipe at Marriage Equality
Last week, the conservative justices buried a soft repudiation of Obergefell in an immigration case, likely laying the ground for more attacks.

ELIE MYSTAL

Every year, there is at least one Supreme Court case that I wasn’t paying attention to, or didn’t think was that important, that absolutely floors me for its cruelty and misapplication of American law. This year, that case is Department of State v. Muñoz, an immigration case that the justices ruled on last week. While I had fully expected the court to use the case to continue its longstanding tradition of racist rulings against brown immigrants, I had not anticipated that it would also turn out to be a frontal attack by Republican justices on the right to marry, aimed squarely at gay and lesbian couples. Muñoz will be a case the conservatives cite in future opinions limiting same-sex marriages whenever they get around to taking away the rights recognized in Obergefell v. Hodges. ... The case involves an American citizen, Sandra Muñoz, who has been trying to get a permanent residency card (more commonly known as a green card) for her husband, Luis Asencio-Cordero. Many people know that a noncitizen can obtain legal status in this country if they marry an American citizen (see Trump, Melania), but many white people don’t know that the process is not automatic. The government reserves the right to deny entry to spouses, and nonwhite people face that reality all the time.

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To understand why Barrett and the conservatives (including Gorsuch) signed on to this expansive and extremist decision, you have to understand the antipathy they all hold towards gay and lesbian marriages. Decoupling the right to marry from the right to cohabitate is how the conservatives are going to vitiate same-sex unions. ... This was the crux of the dissent written by Justice Sonia Sotomayor (which was joined by Elena Kagan and Ketanji Brown Jackson). She warned that the Muñoz ruling will disproportionately impact same-sex couples. She notes that while Muñoz and Asencio-Cordero can, at least, live together with their child in El Salvador, many same-sex couples do not have that freedom because many countries do not recognize marriage equality. So they might not be able to relocate after a non-citizen spouse is denied entry into this one.

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The Muñoz ruling is a soft repudiation of Obergefell that the conservatives buried in an immigration case, hoping none of the voters or activists notice. Sotomayor called out the conservatives and referred to their opinion two years ago in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade. But it now seems evident that (shocker) the conservatives have no intention of keeping their word. Sotomayor wrote: “Despite the majority’s assurance two Terms ago that its eradication of the right to abortion ‘does not undermine … in any way’ other entrenched substantive due process rights such as ‘the right to marry,’ ‘the right to reside with relatives,’ and ‘the right to make decisions about the education of one’s children,’ the Court fails at the first pass[.]” ... She, correctly in my view, sees Muñoz for what it is, the first step at unraveling same-sex marriage rights.

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Bigots in red states will likely pick up the license Barrett has given them. Muñoz might not seem like the most consequential ruling right now, but over the next ten years, as the conservatives on the court chip away at LGBTQ rights, they’ll be referring to this case again and again. Muñoz is a poisoned dart to same-sex marriage: it doesn’t hurt as much as a shotgun to the chest, but it will kill you just the same.