The Limits of Fundamental Rights 

02 Jul The Limits of Fundamental Rights 

The Constitution protects a significant number of rights and liberties as fundamental; fundamental, thought of in these terms, means that there is little to no right of the government to interfere with this right at issue…unless there is a significant government interest that trumps the right itself. Marriage and family rights are fundamental rights; the Constitution has made rights related to marriage and family of the utmost importance and the government must prove that it has a compelling reason to interfere with that right. When it comes to family, the compelling reason for interference may be related to a threat or potential for harm.

Kerry v. Din: Right to Live With Your Spouse?

In a recent case decided by the Supreme Court, Kerry, Secretary of State, Et al. v. Din, the limits of a fundamental right of marriage was tested. The case reviewed the claim by an American citizen who is married to a former civil servant in the Taliban regime, stating that when the government denied her husband’s visa to the country, the government interfered with her fundamental right of marriage. The husband, who is an Afghan citizen and who was a former employee of the Taliban regime, applied for a visa to move to the United States with his American wife. His visa was ultimately denied and little to no explanation was provided for the denial of his visa. The only explanation provided was a citation against U.S. law that bars the issuance of visas to persons who have participated in terrorist activities.

The Reasoning Behind the Holding of the Case

The Supreme Court was split at 5-4 denying Din’s claim of violation of due process; her fundamental right to live with her husband was not provided the adequate substantive due process to ensure that the right interfered with was denied for a compelling reason. According to the opinion submitted by Justice Scalia, just because a right is fundamental does not mean that it will be constitutionally protected every time any law or regulation affects it. In this case, the government’s past authority and interest in the realm of immigration policy provide the government a compelling reason to interfere because it is within the government’s interest to ensure that persons once affiliated with terrorist organizations cannot become American citizens. Though this issue relates to a fundamental right – the right to marry – there is no constitutional right to live with your spouse or to provide American citizenship to your spouse. Her right to life and liberty is not in jeopardy in this case, so, therefore there is no due process violation.

Experienced Family Law Attorneys in Mount Pleasant, Charleston Area

A fundamental right to marry is upheld as the most sacred. If you believe your rights are being violated, it is important to speak with the experienced family law attorneys at Klok Family Law LLC. Contact Klok Family Law LLC  today for an initial and confidential consultation.