Sonia Sotomayor knocks Supreme Court immigration decision, says it could 'burden' same-sex couples

Justice Sonia Sotomayor warned on Friday that her colleagues gravely undervalued the right to marriage for immigrants in a decision she said will have the biggest impact on 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 a dissenting opinion that was joined by her two liberal colleagues.

The case involved an American citizen, Sandra Muñoz, who is married to a citizen of El Salvador. When her husband was denied an immigrant visa, Muñoz said the government didn’t provide a sufficient reason – and sued.

The State Department after three years explained that officials suspected the man of being a gang member, an allegation the couple has denied. Officials based their suspicion in part on the man's tattoos, which they claimed signaled he was associated with the MS-13 gang.

The 6-3 majority said Muñoz may have a fundamental right to marry but not to live with her husband in the United States.

"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.

The couple married in 2010 and have lived apart since 2015, according to court filings. They have one child together.

Sotomayor said the majority could have issued a narrow ruling on procedural grounds, since the government eventually offered an explanation.

Instead, she said, the majority said Muñoz’s right to marry entitles her to nothing when the government excludes her spouse from the country.

While Muñoz may be able to live in El Salvador with her husband, or at least visit him there, others may not.

“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,” she 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.”

The majority said the dissenters "inexplicably" charge their colleagues with "reaching out improperly" to settle the issue. Barrett wrote the court needed to resolve a disagreement among lower courts.

"And we did so at the request of the Solicitor General, who emphasized both the Government’s need for uniformity in the administration of immigration law and the importance of this issue to national security," Barrett wrote.

The Biden administration had asked the court to reverse a 2022 decision from the 9th U.S. Circuit Court of Appeals, based in San Francisco, that said Muñoz's lawsuit could proceed.

Under a long-established judicial policy, noncitizens can’t appeal to the courts when a visa is denied, the Justice Department stressed.

The State Department issued 11 million visas last year and refused 62,000 applications, including those from about 5,400 noncitizens wanting to join a spouse or fiancé in the U.S.

Sotomayor in her dissent cited Supreme Court rulings that cleared the way for people to marry, including rejecting bans on interracial marriage and same-sex marriage. She also cited the court's decision in the landmark 1973 Roe v. Wade decision, which invoked the right to marry as it protected abortion access across the country.

The court overturned Roe v. Wade in 2022, allowing states to enact their own abortions rights or restrictions.

The majority, Sotomayor said, seized on "the Government’s invitation to abrogate the right to marriage in the immigration context and sharply limit this Court’s longstanding precedent."

This article originally appeared on USA TODAY: Sonia Sotomayor knocks Supreme Court immigration decision: 'Burden'