In a rare show of disapproval, all four dissenting U.S. Supreme Court justices have rendered independent dissenting opinions for Friday’s landmark case of Obergefell v. Hodges.
Part of the immense fallout from Friday’s landmark Supreme Court decision forcing states to legalize same-sex marriage will come from the fact that all four opposing justices chose to write up their own dissents, creating a significant body of legal opinion antagonistic to the slim, five-justice majority.
The same-sex marriage case has rightly been compared to the notorious Roe v. Wade decision of 1973, which steamrolled existing state laws regarding abortion and imposed a court-based legal standard. The two cases are not similar because homosexual sex isn’t anywhere near as gravely immoral as the killing of innocent human beings, but because the judicial activism and consequent obliteration of the democratic process is virtually identical.
Each of the four dissenting justices wished to leave a historical record of his absolute opposition to the majority opinion, and the reasons behind it. Significantly, the central core of the dissent regards the judicial process itself, rather than the merits of same-sex marriage.
In what one day may well become required reading for high school students, Chief Justice John Roberts offered a powerful and cogent 27-page opinion, saying that in the face of egregious abrogation of justice, “I have no choice but to dissent.” His evident bitterness was not provoked by the matter of same-sex marriage, but by the trampling of sound judicial practice. “Under the Constitution,” he noted, “judges have power to say what the law is, not what it should be.” The majority decision, he bluntly declared, is “indefensible as a matter of constitutional law.”
What disgusted him as a person dedicated to the rule of law was the utter disregard for that law in favor of unbridled activism. “Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law,” he wrote.
In one of his more forceful indictments, Roberts accuses the majority justices of complete disdain for the Constitution and a willful act of legislative hubris:
The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. 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.”
In doing so, Roberts contends, the majority justices have usurped the role of legislators and ultimately of the people themselves:
The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law, but on its own “understanding of what freedom is and must become.”
Friday’s decision may well be a victory for same-sex couples, Roberts asserts, but it is decidedly a defeat for the US Constitution and for the rule of law.
Similarly, Justices Antonin Scalia, Clarence Thomas and Samuel Alito all object to what they consider a horrifically wrong-headed decision not because they personally disagree with same-sex marriage, but because they care deeply about the role that the U.S. Supreme Court is commissioned to play in the American democracy.
In essence, Justice Scalia says that he cares little for laws regarding same-sex marriage, but that he cares deeply that the democratic process itself be respected. It is not of special importance to me what the law says about marriage, he writes, but it is of overwhelming importance “who it is that rules me.” Today’s decree says that my Ruler “is a majority of the nine lawyers on the Supreme Court.” He also notes that at the time the Constitution’s 14th Amendment was ratified in 1868, “every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so.”
Scalia, too, accuses the majority of reaching “an opinion lacking even a thin veneer of law.”
In his dissenting opinion, Justice Clarence Thomas appeals to the same foundational principles of Constitutional law and the democratic process it was crafted to uphold. The petitioners in the case, he asserts, have asked “nine judges on this Court to enshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normal democratic process for the entire Nation.”
For his part, Justice Samuel Alito simply says that once such cases reach the courts, and especially the Supreme Court, the question is no longer “what States should do about same-sex marriage but whether the Constitution answers that question for them.”
“It does not,” he wrote.
Without using the term, Alito also accuses the majority of hubris, suggesting that they are trying to push citizens toward their personal views on marriage, whether they agree or not.
For today’s majority, he wrote, “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.” As a result, he argues, the majority decision “usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.”
Alito, however, goes beyond criticism of this radical breach of trust to prophecy how it will be used to hurt Americans who may not share a contemporary view of marriage as a malleable, plastic arrangement between an unspecified number of unspecified persons.
“It will be used,” he writes, “to vilify Americans who are unwilling to assent to the new orthodoxy.”
By comparing traditional marriage laws to laws that denied equal treatment for African-Americans and women, Alito continues, the majority sets up a vast number of Americans for terrible harassment and abuse.
“The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent,” he writes.
Friday’s case will go down in US judicial history as one of our nation’s most misguided decisions. Fortunately, the four dissenting justices have also furnished the country with a goldmine of rational, lucid arguments that could eventually serve as the foundation stones to rebuild what has been lost.
Follow Thomas D. Williams on Twitter @tdwilliamsrome