–Francesca M. Genova, University of Notre Dame
In June, the United States Supreme Court handed down a case considering marriage, national security, and fundamental human rights that provides a comparison with the European Union system of rights. Unlike the Supreme Court’s blockbuster marriage case this past year, Kerry v. Din has yet to garner significant attention. This case involves a wife’s asserted right to live in the United States with her husband. The case’s resolution illustrates the justices’ divergent perspectives on whether certain constitutional rights—rights that resemble those in the European Union—exist at all. The plurality continues to distinguish itself from the European rights discourse by narrowly defining a right and then rejecting it while the dissent would align itself to the European Union’s jurisprudence by recognizing broader rights.
In Kerry v. Din, a wife attempted to receive a visa for her husband to live with her in the United States. Din, herself a naturalized U.S. citizen who came to the United States as a refugee, is married to an Afghan citizen who had been a civil servant in the Taliban regime. After the U.S. government classified him as her immediate relative, he filed a visa application. The government denied his application under an immigration law prohibiting those who had been involved in “terrorist activities” from receiving visas. The statute defines “terrorist activities” to include materially supporting a terrorist organization and acting as a terrorist organization’s representative. At the Supreme Court, Din argued that the government violated her due process rights under the Fifth Amendment, as she had a “constitutional right to live in the United States with her spouse” and was not afforded sufficient process in the denial of her husband’s visa.
The Supreme Court denied her claim in a plurality decision authored by Justice Antonin Scalia. In this opinion, the plurality traced the definition of “life, liberty or property” from the Magna Carta to the founding of the United States, determining what the terms meant at the Fifth Amendment’s ratification. Notwithstanding this originalist analysis, the Court then considered its precedent concerning “substantive due process,” the unenumerated fundamental rights any infringement of which can violate one’s constitutional right to due process. The plurality defined the right that Din asserted as “the constitutional right to live in the United States with her spouse”, using a narrow approach to defining constitutional rights that the Court has utilized in other cases. It concluded: “There is no such constitutional right.” The government’s prior strict regulation of spousal immigration was evidence that no such fundamental marriage right as Din asserted exists. Instead, “[n]either Din’s right to live with her spouse nor her right to live within [the United States] is implicated” in her husband’s visa denial, as these rights are distinct: she could live with her spouse in a foreign country, or she could live in the United States. The government’s action did not deprive Din of her own life, liberty, or property.
This understanding of rights juxtaposes that of the European Union [EU].
The European Union recognizes the right of EU citizens’ non-citizen spouses to live with their citizen spouses in the European Union. This right flows from the family rights enumerated in the Charter of the Fundamental Rights of the European Union and the right to freedom of movement more generally; it is enshrined in Directive 2004/58/EC. As the European Court of Justice has elaborated it, the fundamental right to family life that the EU citizen possesses derivatively applies to his or her spouse—a position that the plurality decision in Din expressly rejected.
In part, the difference in the two jurisdictions’ current approaches to the import of recognizing a right explains this difference. In the European Union, this right exists but Member States may deny an individual the ability to exercise it for reasons of “public policy, public security or public health.” Furthermore, the European Union uses an ingrained proportionality test that may inhibit the actual realization of these rights. This test “exclusively” takes into consideration “the personal conduct of the individual concerned” as well as that individual’s “degree of integration,” the “length of their residence in the host Member State, their age, state of health, family and economic situation, and the links with their country of origin” in deciding whether denying an individual the ability to exercise this right.
Meanwhile, in the United States’ jurisprudence, if the Court recognizes a fundamental right, a government regulation affecting that right must survive “strict scrutiny”: it must be necessary for achieving a “compelling state interest.” The two justices concurring in the plurality’s judgment argue that the immigration regulation satisfies this test even assuming that the right exists. The plurality prefers to foreclose any such analysis. The U.S. Supreme Court generally attempts to create bright-line rules, even if those rules sometimes resemble proportionality in their application. The plurality justices, in avoiding a proportionality analysis, declare that there is no right at all.
Yet, there are also fundamental differences about the understanding of rights that motivates the two decisions. First, and most obviously, is the plurality’s reliance on originalism to define what due process rights mean in the Constitution as it currently stands: rights for these justices do not evolve in the same way as is recognized in the European system.
Second, and more fundamentally for a comparative analysis, the plurality concerns itself with individual rights. The right to a family, an individual right with social implications that creates derivative rights even for non-EU citizens, does not exist in a strict originalist interpretation of the Constitution. While the European Union is free to look to United Nations treaties that expound on family rights—with the Universal Declaration of Human Rights itself recognizing the family as the fundamental unit of society—American justices who follow a strict originalist methodology view the right that Din suggests as an individual one, separate from any rights her husband has. The plurality disclaims any notion that Din’s rights are affected by her husband’s situation: such an understanding can only arise out of “the artificial world of ever-expanding constitutional rights.”
Finally, these two jurisdictions make different claims about human rights in general. The European Union recognizes the symbolic value of the right to family, even though a Member State likely would be justified in barring someone with terrorist connections from entering the European Union if this measure is proportionate to the aim of protecting public safety. The right itself deserves respect, and a Member State is obliged to consider it even as it denies its application. In the United States, this right does not exist. The government need not afford it any due process. As the plurality notes, Din’s relationship with her husband may be “important,” but it does not receive constitutional protection.
Yet, American jurisprudence very well may be shifting on these issues of fundamental rights and proportionality and becoming more in line with the European system. While only three justices joined the main plurality opinion that disclaimed the right, four justices joined Justice Breyer’s dissent, recognizing the liberty interest of Din’s “freedom to live together with her husband in the United States.” This right closely resembles the European Union’s right of an EU citizen spouse to reside with his or her non-citizen spouse. The dissent states that “the institution of marriage, which encompasses the right of spouses to live together and to raise a family, is central to human life.” Although the dissent recognizes national security concerns, it argues that Din did not receive constitutionally adequate information about the reasons for the denial of her husband’s visa application.
The dialogue between the plurality and the dissent in Kerry v. Din shows the differences in European and American jurisprudence and the potential for harmony in the future. The Supreme Court’s understanding of its role and the Constitution’s mandates will continue to shape and be shaped by its degree of participation in the global rights discussion.
Suggested Citation: Francesca M. Genova, The United States’ Approach to European-Style Family Rights and National Security: The Case of Kerry v. Din, Int’l J. Const. L. Blog, Feb. 3, 2016, at: http://www.iconnectblog.com/2016/01/the-united-states-approach-to-european-style-family-rights-and-national-security-the-case-of-kerry-v-din
 Kerry v. Din, 135 S. Ct. 2128, 2131 (2015).
 Id. at 2132.
 Id. at 2131–32.
 Id. at 2131.
 Id. at 2132–33.
 Id. at 2131.
 See Michael H. v. Gerald D., 491 U.S. 110, (defining the liberty interest that the Court ultimately rejects as that “of the natural father to assert parental rights over a child born into a woman’s existing marriage with another man”).
 Id. at 2131.
 Id. at 2135–36.
 Id. at 2138.
 Parliament and Council Directive 2004/58/EC, 2004 O.J. (L 158).
 Charter of the Fundamental Rights of the European Union, 2000/C 364/01, arts. 7, 9, & 33.
 Parliament and Council Directive 2004/58/EC, 2004 O.J. (L 158).
 See Case C-202/13, McCarthy v. United Kingdom, ECLI:EU:C:2014:2450, available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62013CJ0202 (discussing how non-citizens are beneficiaries of their spouse’s freedom of movement rights); Case C-459/99, MRAX v. Belgium, 2002 E.C.R. I-06591, ¶ 53. (“[T]he Community legislature has recognised the importance of ensuring protection for the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty.”)
 Parliament and Council Directive 2004/58/EC, 2004 O.J. (L 158), art. 27.
 Id. preamble & art. 27(2).
 Din, 135 S. Ct. at 2137.
 Din, 135 S. Ct. at 2139 (Kennedy and Alito, J.J., concurring).
 G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948), art. 16.
 Din, 135 S. Ct. at 2131.
 Id. at 2138.
 Id. at 2141 (Breyer, Ginsburg, Sotomayor, & Kagan, J.J., dissenting)
 Id. at 2142.
 Id. at 2144.