Each of the four Supreme Court justices who disagreed with today’s ruling in favor of legal same-sex marriage issued his own dissent. And each was fucking nuts in its own, special way. Here, the weirdest, craziest, and flat-out dumbest lines from each.
We begin with Chief Justice John Roberts, who—like most of his colleagues—stops short of condemning gay marriage itself, but argues that a Supreme Court decision was the incorrect method for implementing it nationwide. And also that we shouldn’t do anything the Aztecs didn’t do.
The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?
As Choire Sicha asks at the Awl, who are we to turn out backs against human sacrifice, as enthusiastically practiced by the Aztecs? Or more to the point, since we’re talking about the sanctity of marriage—against keeping concubines like the Chongzhen Emperor, last ruler of the Ming Dynasty?
In Roberts’s argument that marriage has historically been defined as the union of one man and one woman, he also invokes the favorite rhetorical device of inarticulate groomsmen everywhere: The Webster’s Dictionary definition.
Of course, many did say it. In his first American dictionary, Noah Webster defined marriage as “the legal union of a man and woman for life,” which served the purposes of “preventing the promiscuous intercourse of the sexes, . . . promoting domestic felicity, and . . . securing the maintenance and education of children.”
The majority opinion on the same-sex marriage decision invoked the 14th Amendment, which prohibits states from denying a person’s “liberty...without due process of law.” To deny same-sex couples the right to marry is to deny them liberty, according to Justices Ginsberg, Kagan, Sotomayor, Breyer, and Kennedy. But follow this line of thinking far enough and you might accidentally bring slavery back, says Roberts.
The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford, 19 How. 393 (1857). There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted that “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States . . . could hardly be dignified with the name of due process of law.”
Later, Roberts touches on an old sawhorse of the bigoted religious right: If make gay marriage legal, why not polygamous marriage as well? Fortunately, he stopped short of bringing up bestiality, Ben Carson-style.
Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one. It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.
Roberts and Scalia both fixate on the idea that five “lawyers”—“unelected lawyers,” Scalia adds biliously—should not impose their will on the entire nation. Roberts also harps on the idea that ours is a “government of laws, not of men.” If that’s true, who better to make legal decisions than the country’s foremost experts on the law?
Scalia, reliably the most unhinged of the justices, did not disappoint for his part. First up: the assertion that because the nine justices are not a representative sample of the Real America, they are not qualified to rule on the issue of marriage. There’s not even anyone from the west! (California does not count.)
Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.
There is also not, we might point out, an openly gay justice. But let’s make sure we get an Iowan on there first.
A few sentences later, Scalia refers to the decision as a “judicial Putsch”—Putsch, if you haven’t been inside a history classroom in a while, meaning an attempt to violently overthrow the government, and carrying a nearly inextricable association with the German Nazi Party’s failed “Beer Hall Pustch” of 1923.
In the most memorable section of his dissent, Scalia’s takes on the voice of an angry message board poster, block-quoting his enemies in a point-by-point takedown of their bad opinions on Yu-Gi-Oh!. He calls them pretentious; he talks about hippies; he offers one word rhetorical questions like “Really?” and “Huh?; he brackets “[whatever that means]” not twice but thrice.
The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (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. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?)
Not to be outdone by his boss, Scalia closes his argument with a dictionary definition of his own—with a Biblical reference thrown in free of charge.
Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall.
After a long meditation on the meaning of the word “liberty,” Thomas turns to another term invoked in the majority opinion: “dignity.” Dignity shouldn’t be an issue, he says, because there’s no dignity clause in the Constitution. Also, because black Americans didn’t lose their dignity under slavery:
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.
The majority’s musings are thus deeply misguided, but at least those musings can have no effect on the dignity of the persons the majority demeans.
Finally, we come to Samuel Alito, who has the most nasty things to say about gay marriage itself. Here, he argues that a conception of marriage that is not focused on procreation—i.e., one that has room for same-sex couples—is only possible because the traditional baby-centric model has become “frayed” and “decayed.”
Have you guys heard about all these single moms?
If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women. This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage. While, for many, the attributes of marriage in 21st century America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay. It is far beyond the outer reaches of this Court’s authority to say that a State may not adhere to the understanding of marriage that has long prevailed, not just in this country and others with similar cultural roots, but also in a great variety of countries and cultures all around the globe.
Alito then considers the majority’s comparison between laws that prohibit gay marriage with those that subordinated women and people of color—and concludes that homophobes will now be relegated to “whispering” their homophobic ideas in the safety of their own homes, lest they be labeled as bigots. Which—call me crazy—sounds like a desirable state of affairs to me.
Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.