Breyer, J., dissenting
support, and plays a central role in most individuals’ "orderly pursuit of happiness," Meyer v. Nebraska, 262 U. S. 390, 399 (1923). See also, e.g., Griswold v. Connecticut, 381 U. S. 479, 485–486 (1965); Zablocki v. Redhail, 434 U. S. 374, 386 (1978); Moore v. East Cleveland, 431 U. S. 494, 500–503 (1977) (plurality opinion); Smith, supra, at 843. Similarly, the Court has long recognized that a citizen’s right to live within this country, being fundamental, enjoys basic procedural due process protection. See Ng Fung Ho v. White, 259 U. S. 276, 284–285 (1922); Baumgartner v. United States, 322 U. S. 665, 670 (1944).
At the same time, the law, including visa law, surrounds marriage with a host of legal protections to the point that it creates a strong expectation that government will not deprive married individuals of their freedom to live together without strong reasons and (in individual cases) without fair procedure. Cf. Turner v. Safley, 482 U. S. 78, 95–96 (1987) (noting various legal benefits of marriage); 8 U. S. C. §1151(b)(2)(A)(i) (special visa preference for spouse of an American citizen). Justice Sclaia’s response—that nonconstitutional law creates an "expectation" that merits procedural protection under the Due Process Clause only if there is an unequivocal statutory right, ante, at 11–12—is sorely mistaken. His argument rests on the rights/privilege distinction that this Court rejected almost five decades ago, in the seminal case of Goldberg v. Kelly, 397 U. S. 254, 262 (1970). See generally Board of Regents of State Colleges v. Roth, 408 U. S. 564, 571 (1972) (“[T]he Court has fully and finally rejected the wooden distinction between ‘rights’ and ‘privileges’ that once seemed to govern the applicability of procedural due process rights”); id., at 572 (“In a Constitution for a free people, there can be no doubt that the meaning of 'liberty' must be broad indeed”).
Justice Scalia’s more general response—claiming that
