Department of State v. Muñoz: Authorizing Family Separation 

July 10, 2024

The conservative Justices of the United States Supreme Court (who compose six of the nine Justices on the bench) are on a rampage against our most fundamental human rights. In the past few weeks, SCOTUS has issued devastating decision after devastating decision. Is incarcerating unhoused folks for sleeping outside, even as a city lacks sufficient shelter, a violation of the 8th Amendment’s prohibition on cruel and unusual punishment? Confoundingly and disturbingly, apparently not. Are Presidents above the law? Uh… yes, seems like it.

But while City of Grants Pass v. Johnson and Trump v. U.S. received understandable and necessary levels of publicity, another opinion – Department of State v. Muñoz – hasn’t quite captured national attention and outrage. Muñoz is yet another SCOTUS decision that will have devastating effects for swaths of folks across the country. As Marjorie Cohn summarizes, Sandra Muñoz’s story is devastating. Muñoz, a U.S. citizen, and her Salvadoran husband, Luis Ascencio-Cordero, lived together for 5 years in the U.S. She filed a visa application for him, but since he entered the U.S. undocumented, he had to return to El Salvador and apply for a visa from there. Then, the government unexpectedly informed them that Cordero couldn’t reenter based on a nebulous, seemingly wholly unsupported claim that he planned to engage in “unlawful activity.” Muñoz asked the government for what to many would seem like the bare minimum: an explanation for why the government was burdening her fundamental right to marriage by keeping her separated from her spouse.

But to SCOTUS, that was asking for too much. In a 6-3 ruling, the court held that U.S. citizens have no constitutional right to have their noncitizen spouses travel abroad and then return home to the U.S. As such, the government doesn’t have to give any reason for excluding them. In so holding, the court authorizes couples and their families to be separated by the government – in contravention of the fundamental right to marry – with no clear information why. What is the right to marry if it doesn’t include the right to be with one’s spouse?

In the words of Erwin Chemerinsky, Dean of Berkeley Law School and one of Muñoz’s attorneys, the decision “ignores both constitutional principles and basic human decency.” Due to the U.S. government’s arbitrary cruelty, for over a decade, Muñoz has been unable to live with her husband, who lives in El Salvador.

We at the Woodhull Freedom Foundation are incensed by the Muñoz decision, which as it stands will lead to cruel, unconscionable results for mixed-status families across the country. We’re also concerned by the risk noted by Cohn that the erosion of the fundamental right to marry will serve to undermine the right to same-sex marriage, and all the fundamental rights enjoyed as part of that. We at Woodhull believe that the fundamental right to form a family includes the right to live together as a family, and we will continue to fight to protect that right.