#Love Wins*: *But Only If, You Marry One of Us

Abstract

This essay contributes to the discourse about how rights for non-citizens to be reunited with U.S. citizen family members, are devoid of any constitutional guarantees, either substantively or procedurally. By contrasting the Court’s reasoning in the cases Obergefell v. Hodges and Kerry v. Din, this essay demonstrates while the Court’s treatment of same sex intimate relationships has evolved over time to expand constitutional guarantees for these individuals, the Court’s thinking regarding the absolute, unreviewable power of the executive to decide who may enter the U.S. even to reunite with a U.S. citizen spouse has remained harshly stagnant. In both Obergefell and Din, the individuals were arguing their right to marry and their right to choose where to reside in marriage were being obstructed by unlawful government actions that violated due process guarantees of the Constitution. Further, both parties sought similar remedies from the Court, which was governmental recognition of their martial union and the practical ability to effectuate such a union. The Court in Obergefell held that the right to marry someone of the same sex is not a question to be left to the political branches of our government, but a constitutionally justiciable one. Yet, the Court in Din deflected the constitutional due process claims by relying on its plenary power doctrine jurisprudence which “has long held that an alien seeking initial admission to the United States...has no constitutional rights...for the power to admit or exclude aliens is a sovereign prerogative.” This essay concludes that non-citizens rights still persist squarely outside the “rights-oriented jurisprudence” of the Court and remain ensconced in the political branches’ unreviewable prerogative to decide whom to exclude from the United States.