Brooklyn Law Review


Beth Caldwell


As the fiftieth anniversary of Loving v. Virginia approaches, de jure prohibitions against interracial marriages are history. However, marriages between people of different national origins continue to be undermined by the law. The Constitution does not protect the marital rights of citizens who marry noncitizens in the same way that it protects all other marriages. Courts have consistently held that a spouse’s deportation does not implicate the rights of American citizens, and the Constitution has long been held inapplicable in protecting the substantive due process rights of noncitizens facing deportation. Given the spike in deportations over the past decade, hundreds of thousands of American citizens—often Latina women—face a dilemma the Supreme Court has referred to as “intolerable” in other contexts: they must choose between the fundamental right to marriage and the right to live in the United States. Influenced by gendered and racial subordination, the law allows for the deportation of the spouses of American citizens with virtually no constitutional oversight. This article draws upon the experiences of women whose husbands have been deported to challenge the foundational assumptions underlying many of the cases that have held that spousal deportation does not implicate the rights of citizen spouses, arguing that the Constitution should protect the marriages of binational couples in the same way it protects all other marriages, and that strict scrutiny should apply to deportations of the husbands and wives of U.S. citizens.