New York Times

WASHINGTON — In a fractured 5-to-4 decision with no majority opinion, the Supreme Court on Monday refused to second-guess the denial of a visa on national security grounds to the Afghan husband of an American woman.

Justice Antonin Scalia, joined by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas, said that the woman, Fauzia Din, had no legally enforceable right to live with her husband in the United States.

Justice Anthony M. Kennedy, joined by Justice Samuel A. Alito Jr., took no position on that point but said the reasons given for denying the visa were sufficient, particularly in light of national security concerns.

The State Department said in 2009 that it had turned down Ms. Din’s husband, Kanishka Berashk, because he had been involved in terrorist activities, but it would not elaborate. Mr. Berashk had worked as a civil servant in the Taliban regime in Afghanistan.

Under a longstanding legal doctrine called “consular nonreviewability,” Mr. Berashk was powerless to pursue the matter in American courts.

But Ms. Din, a naturalized United States citizen, said the visa denial interfered with her fundamental right to marriage. A federal appeals court in California agreed, ruling that she was entitled to “a facially legitimate reason” for the denial.

Justice Scalia acknowledged that the Supreme Court had ruled that marriage is a fundamental right, notably in 1967 in Loving v. Virginia, which struck down bans on interracial marriage.

“Although some of our case law speaks of an implied fundamental right to marry, Din has not been forbidden to enter a marriage,” Justice Scalia said in summarizing his opinion from the bench. “And those right-to-marry cases cannot be expanded to include a right that Din argues for — the right to live in the United States with one’s alien spouse.”

Given that, Justice Scalia said of Ms. Din in his written opinion, “to the extent that she received any explanation for the government’s decision, this was more than the due process clause required.”

Justice Kennedy’s opinion, narrower and therefore controlling, said, “Today’s disposition should not be interpreted as deciding whether a citizen has a protected liberty interest in the visa application of her alien spouse.”

It is not unusual for the justices in the majority to agree on the bottom line but not the rationale. If no rationale commands five votes, the narrowest opinion governs. In dissent on Monday, Justice Stephen G. Breyer emphasized this point. “The plurality opinion,” he wrote, referring to the one from Justice Scalia, “is not controlling.”

He said, instead, that the government had satisfied its due process obligations by telling Mr. Berashk that he had been excluded under a statute barring visas to people who had engaged in terrorist activities.

In dissent, Justice Breyer wrote that the Constitution must “offer some form of procedural protection to a citizen threatened with governmental deprivation of her freedom to live together with her spouse in America.”

The statutory citation that had satisfied Justice Kennedy was an insufficient explanation for the visa denial, Justice Breyer said.

“The reason given,” Justice Breyer wrote, “is analogous to telling a criminal defendant only that he is accused of ‘breaking the law’; telling a property owner only that he cannot build because environmental rules forbid it; or telling a driver only that police pulled him over because he violated traffic laws.”

“The presence of security considerations,” he added, “does not suspend the Constitution.”

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined the dissent.

The court will issue major decisions on President Obama’s health care lawand same-sex marriage in the next two weeks. The effort to put the finishing touches on those and other decisions may have distracted Justice Scalia on Monday in announcing the visa case, Kerry v. Din, No. 13-1402.

He said “Justice Goldberg” had joined the dissent, apparently a reference to Justice Arthur J. Goldberg, who retired in 1965. Chief Justice Roberts leaned over to correct him.

“What did I say?” Justice Scalia said. “Goldberg’s gone. Sorry about that, Ruth.”