Immigration Article of the Day: Loving’s Borders by Jennifer Chacón

Check of Jennifer Chacón's article: Loving’s Borders, 115 Cal L. Rev. 1079 (2025). Here's the abstract:

In a term filled with high-profile cases, Department of State v.
Muñoz1 did not receive high-profile treatment. But the case was a
critically important successor to Dobbs v. Jackson Women’s Health
Organization. In Muñoz, the Court continued efforts, launched in
Dobbs, to shrink the protective force of the Due Process Clause. Even
more significantly, in Muñoz, the Court launched another attack on the
equality principle undergirding Loving v. Virginia, Lawrence v.
Texas, United States v. Windsor, and Obergefell v. Hodges. Those
cases embodied what Laurence Tribe once dubbed a “double helix” of
due process and equal protection principles. They show the Court’s
effort (albeit imperfect) to weave together liberty guarantees and
equality principles to better protect human dignity. Muñoz made clear
that the Court’s post-Dobbs reordering of constitutional principles is
taking direct aim at both strands of the double helix. Through its
rejection of substantive due process protections, the Court is
intentionally weakening a broad swath of antidiscrimination
protections and procedural due process rights.

This Essay explores the implications of the Muñoz decision. Part
I summarizes the litigation and the resulting Supreme Court opinion.
The Court took an unnecessarily maximalist approach in Muñoz,
undermining the practical value of the right to marriage for
individuals married to noncitizens. Part II argues that the Court did
so through one of its frequently used moves: namely, denying rights
protections to a U.S. resident (here, a citizen by birth and resident of
California) through a sleight of hand that reduced Muñoz’s
constitutional rights and interests to those of a constitutional
“outsider.” This aspect of the case foreshadows the continued erosion
of constitutional protections for the members of historically
subordinated groups. Part III explains how the decision rewrote five
decades of constitutional case law by denying courts a role in
reviewing immigrant admissions decisions of the political branches.
Part IV excavates the racially discriminatory reasoning that implicitly
undergirded the Court’s substantive due process analysis in Muñoz.
Invidious discrimination drove, and was manifested in, the Court’s
reading of both founding-era history and its own precedent. Part V
critiques the historical errors of the Court’s purportedly originalist
account and its selected level of generality. The Essay concludes by
highlighting the troubling implications of Muñoz for the Constitution’s
promise of equal protection. Muñoz’s limited reading of the “right to
marriage” obviously shrinks the protective scope of the Constitution’s
due process protections. But in so doing, it also legitimates familiar
patterns of subordination along lines of race, gender, sexual
orientation, and citizenship.