Justice Sonia Sotomayor lashed out at her Supreme Court colleagues in a fiery dissent Friday, arguing the court’s ruling in a spousal visa case will prove especially harmful for same-sex couples.
“Same-sex couples may be forced to relocate to countries that do not recognize same-sex marriage, or even those that criminalize homosexuality,” Sotomayor wrote in her dissent that was joined by Justices Elana Kagan and Ketanji Brown Jackson.
The opinion comes in the case of Sandra Muñoz, an American citizen who married a citizen of El Salvador who was denied an immigrant visa to the United States. Muñoz sued the State Department over the issue, alleging the government did not provide sufficient reason to deny her husband a visa.
The State Department, meanwhile, argued that officials suspected the husband of being a member of the infamous MS-13 gang, citing tattoos the man has that seemingly signal affiliation with the gang. The couple has denied the accusation.
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But in a 6-3 decision, the court ruled that Muñoz has a right to marry but that her husband does not have a right to live in the U.S. with her.
“In fact, Congress’s longstanding regulation of spousal immigration −including through bars on admissibility − cuts the other way,” Justice Amy Coney Barrett wrote for the majority. “As a general matter, Congress sets the terms for entry, and the Department of State implements those requirements at United State Embassies and consulates in foreign countries.”
Coney Barrett was joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Chief Justice John Roberts in the majority.
Yet Sotomayor said in her dissent that the majority’s ruling puts the fate of U.S. couples in the hands of other governments, a burden she argued would fall most heavily on same-sex couples.
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“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,” Sotomayor wrote. “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 also took aim at the State Department’s assessment of the man’s tattoos, arguing that some of the images are symbols of “pan-Latinx identity.”
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“Asencio-Cordero has no criminal record, but he does have several tattoos from his teenage years,” Sotomayor wrote. “They depict a range of subjects, including ‘Our Lady of Guadalipe, Sigmund Freud, a tribal pattern with a paw print, and theatrical masks with dice and cards…Some of these images have deep significance in Latin American culture.”
