Diary

Dissent on Gay Marriage: The Justices' Own Words

dissenters

Five Supreme Court justices agreed that culture reigns over Constitution in Obergefell v. Hodges, as they found another emanation from the 14th Amendment–this one granting “dignity and liberty”–a phrase that most (American) third year law students would be hard pressed to find in their texts (at least before Friday).

Fortunately, Americans pay Supreme Court justices for their careful legal analysis and foresight on issues like this.  Four of them saw the cowardice in having the Court decide what is outside their proper role.

Four of the justices dissented in the case.  Here are their own words.

In his dissent, Justice Antonin Scalia wrote:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “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,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Justice Clarence Thomas wrote:

Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Decla- ration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built. The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

Justice Samuel Alito wrote:

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 pro- tection upon that right simply because they believe that it is fundamental.

And Chief Justice Roberts wrote:

Understand well what this dissent is about: It is not about whether, in my judgment, the institution of mar- riage 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. The Constitution leaves no doubt about the answer.