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Why Four Justices Were Against the Supreme Court’s Huge Gay-Marriage Decision

Highlights from the Court’s dissents.

Supporters and opponents of same-sex marriage demonstrate near the Supreme Court.(Drew Angerer/Getty Images)

June 26, 2015  Same-sex marriage is now a right in every state in the country, following a historic 5-4 decision from the Supreme Court Friday. The four justices who disagreed with the Court’s opinion, authored by Justice Anthony Kennedy, each wrote their own dissent laying out just why they believed the majority to be wrong.

Here’s their reasoning.

Chief Justice John Roberts

Roberts’s argument centered around the need to preserve states’ rights over what he viewed as following the turn of public opinion. In ruling in favor of gay marriage, he said, “Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law.”

Justice Scalia and Justice Thomas joined him in his dissent.

While Roberts said he did not “begrudge” any of the celebrations that would follow the Court ruling, he had serious concerns that the Court had extended its role from constitutional enforcer to activist.

Roberts: “Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples.”

“Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law,” he wrote.

While, he recognized the decision would be hailed as a major victory for same-sex couples and their allies, he noted they had been set back.

“Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today,” Roberts wrote. “Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”

Roberts disparaged the majority decision by saying that it was nothing more than a flimsy argument.

“Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society,” Roberts wrote. “If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.”

Roberts’s other dispute is that many of the arguments made in support of gay marriage could be used to also support plural marriage.

“If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ … serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?” he writes. “I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any.”

Justice Antonin Scalia

According to Justice Antonin Scalia, today’s majority ruling represents a “judicial Putsch.”

Scalia wrote that while he has no personal opinions on whether the law should allow same-sex marriage, he feels very strongly that it is not the place of the Supreme Court to decide.

“Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best,” Scalia wrote. “But the Court ends this debate, in an opinion lacking even a thin veneer of law.”

Scalia stated he wanted to write a separate dissent “to call attention to this Court’s threat to American democracy.” Justice Clarence Thomas joined Scalia in this dissent.

Scalia attacked his colleagues’ opinion with his signature flourish. “The opinion is couched in a style that is as pretentious as its content is egotistic,” he wrote.

Scalia: “One would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.”

According to Scalia, the five justices in the majority are using the 14th Amendment in a way that was never intended by its writers. “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so,” he wrote.

“They [the majority] have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.”

Scalia called out the majority for acting like activists, not judges. (He was similarly critical in Thursday’s ruling on health care.) “States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment,'” he wrote.

Scalia’s scorn went beyond picking apart the majority’s legal judgement. He also made fun of their language.

The majority began its opinion with the line: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

Scalia wrote that if he ever were to join an opinion that began with that sentence he “would hide my head in a bag,” saying such language was more like the “mystical aphorisms of the fortune cookie” than, say, legendary Chief Justice John Marshall.

Elsewhere, the majority wrote “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”

Scalia scoffed at this assertion, saying that even “the nearest hippie” would know that marriage hinders the freedom of intimacy. Here are his words:

Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.

What the nearest hippie knows about intimacy, Scalia did not elaborate on.

Justice Clarence Thomas

In his own separate dissent, which Scalia also joined, Justice Clarence Thomas pilloried the majority opinion as “at odds not only with the Constitution, but with the principles upon which our nation were built.”

Kennedy and the Court’s liberal wing are invoking a definition of “liberty” that the Constitution’s framers “would not have recognized, to the detriment of the liberty they sought to protect.”

“Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government,” Thomas said. “This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.”

Thomas: “This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.”

Thomas argues that the majority is erring in its interpretation of the 14th Amendment’s due-process clause, by reading it as more expansive and far-reaching than originally intended. The case lacks standing on this issue, he continues, because the plaintiff does not adequately show that a state ban on same-sex marriage constitutes a true deprivation of “liberty” under the law.

“As used in the Due Process Clauses, ‘liberty’ most likely refers to ‘the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law,'” Thomas wrote. “That definition is drawn from the historical roots of the Clauses and is consistent with our Constitution’s text and structure.”

Further, the long-standing legal understanding of liberty does not encompass the rights the majority opinion says it does, Thomas argues. Liberty has “long been understood as individual freedom fromgovernment action, not as a right to a particular governmental entitlement.”

“Whether we define ‘liberty’ as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it,” he continued. “Petitioners cannot claim, under the most plausible definition of ‘liberty,’ that they have been imprisoned or physically restrained by the States for participating in same-sex relationships.”

Thomas, echoing a grievance expressed by many conservative politicians, also laments that the Supreme Court’s decision is enshrining a definition of marriage into the Constitution in a way that puts it “beyond the reach of the normal democratic process for the entire nation.”

Thomas additionally warns that the Court’s “inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty.” Further, he argues that the decision will threaten religious liberty by creating an unavoidable collision between the interests of same-sex couples and some religious organizations.

“In our society, marriage is not simply a governmental institution; it is a religious institution as well,” Thomas wrote. “Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.”

Justice Samuel Alito

In his dissent, Alito argues that gay marriage is not protected in the Constitution under the Due Process Clause because “liberty” only applies to those principles that are rooted in U.S. tradition. His argument is that the concept of gay marriage is new and therefore not included.

“For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental,” Alito writes.

Alito also reaffirms his position that there is no way to confirm what the outcome of gay marriage may be on the institution of traditional marriage and therefore the Court is and should not be in a position to take on the topic.

Alito: “For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.”

“At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are certainly not equipped to make such an assessment,” Alito wrote.

Alito’s belief is also that traditional marriage has existed between a man and woman for one key reason: children. His argument is:

For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate. Adherents to different schools of philosophy use different terms to explain why society should formalize marriage and attach special benefits and obligations to persons who marry. Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children.

Now that the majority has ruled in favor of gay marriage, Alito offers a stark warning about future conflict between religious liberty and progressive ideas.

“By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds,” he writes.

Like his conservative colleagues, Alito worries that the Court is overstepping its power, making sweeping legal changes for every state in the country. He concludes on a warning.

“Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims,” Alito writes. “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. ”

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