Obergefell v. Hodges: The Dissenting Opinions
Complicated questions of law have two sides, otherwise they would not cause such controversy or make it to the highest level of courts. In the case of Obergefell v. Hodges, it is tempting to say that the four dissenters are just a bunch of homophobes stuck in the past. It is easy to come to this conclusion, given the ideological roots of the dissenting justices. But on examination of their dissents, I don't believe that it is fair to say that they are devoid of any intellectual honesty or that they are not a case of reasonable people seeing things differently.
There were four dissenting opinions written, the first by Chief Justice John Roberts. In his opinion, he acknowledges that recent recognition for same-sex marriage at the state level suggests that what the petitioners are asking for has merit. But where Roberts differs with the majority is on this ground:
"But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say whatthe law is, not what it should be."
Roberts goes on to state:
Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage... Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. 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 acknowledged that the nature of marriage has evolved over time (e.g. rejection of arranged marriage, married women are no longer consider property and interracial marriage is now legal) and while the latter change came about as part of the court's ruling, Roberts argues that these decisions did not "work any transformation in the core structure of marriage as the union between a man and a woman."
Roberts is critical of the majority for "judicial policymaking." He writes:
"In reality however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner v. New York, 198 U. S. 45. 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. 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 goes on to argue why, in his opinion, the majority's interpretation of the due process and equality before the law clauses of the constitution are wrong because they are outside of the bounds of judicial review and across the line of judicial legislating. But he also adds a personal note in his criticism of the majority when he writes: "Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate." He says that the majority is doing this by assuming that those passing laws prohibiting same-sex marriage are trying to stigmatize same-sex couples, when what they are really doing is just recognizing the age old concept of marriage as being the union of a man and a woman.
Roberts concludes:
"If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."
Like Chief Justice Roberts, Justice Antonin Scalia says that he doesn't care what the legislatures say about who can marry who. But what offends him about the majority decision is the usurpation of power by the judges in the majority. Scalia writes:
"So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create“liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves."
He adds:
"Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work."
Scalia also notes some personal animosity when he describes the majority opinion as a "judicial Putsch" full of hubris. He adds, "The opinion is couched in a style that is as pretentious as its content is egotistic." He criticizes the majority for concluding that intimacy and spirituality are freedoms, adding that "if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie." His strong sarcasm is further on display in this comment he makes in a footnote:
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.
In his conclusion, Scalia writes:
"The world does not expect logic and precision in poetry or inspirational pop philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis. Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.” With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.
Justice Clarence Thomas, in his dissent, accuses the majority of misconstruing the due process clause of the constitution, which he says is not "a font of substantive rights". He argues that the "liberty" which the majority says that the petitioners are being deprived of is not one recognized in the Constitution. He adds:
"The majority’s inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty."
Thomas criticizes the majority for ignoring the affect that its decision may have on religion liberty. He writes:
"Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty."
Finally Justice Samuel Alito dissents on much the same ground as Roberts. He argues that this is a decision that belongs to the legislatures, not the courts. He writes: "The Constitution leaves that question to be decided by the people of each State." He is also critical of the majority, writing:
"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 is also concerned about the implications of the decision on the rights of critics of same-sex marriage. He writes:
"Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences. It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent."
He concludes with a caution that this decision is bad for the nation not for its result for same-sex couples, but for its unrestrained example of judicial activism. He concludes his dissent as follows:
"Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.
Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.
"Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of
same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends."
There were four dissenting opinions written, the first by Chief Justice John Roberts. In his opinion, he acknowledges that recent recognition for same-sex marriage at the state level suggests that what the petitioners are asking for has merit. But where Roberts differs with the majority is on this ground:
"But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say whatthe law is, not what it should be."
Roberts goes on to state:
Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage... Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. 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 acknowledged that the nature of marriage has evolved over time (e.g. rejection of arranged marriage, married women are no longer consider property and interracial marriage is now legal) and while the latter change came about as part of the court's ruling, Roberts argues that these decisions did not "work any transformation in the core structure of marriage as the union between a man and a woman."
Roberts is critical of the majority for "judicial policymaking." He writes:
"In reality however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner v. New York, 198 U. S. 45. 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. 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 goes on to argue why, in his opinion, the majority's interpretation of the due process and equality before the law clauses of the constitution are wrong because they are outside of the bounds of judicial review and across the line of judicial legislating. But he also adds a personal note in his criticism of the majority when he writes: "Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate." He says that the majority is doing this by assuming that those passing laws prohibiting same-sex marriage are trying to stigmatize same-sex couples, when what they are really doing is just recognizing the age old concept of marriage as being the union of a man and a woman.
Roberts concludes:
"If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."
Like Chief Justice Roberts, Justice Antonin Scalia says that he doesn't care what the legislatures say about who can marry who. But what offends him about the majority decision is the usurpation of power by the judges in the majority. Scalia writes:
"So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create“liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves."
He adds:
"Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work."
Scalia also notes some personal animosity when he describes the majority opinion as a "judicial Putsch" full of hubris. He adds, "The opinion is couched in a style that is as pretentious as its content is egotistic." He criticizes the majority for concluding that intimacy and spirituality are freedoms, adding that "if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie." His strong sarcasm is further on display in this comment he makes in a footnote:
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.
In his conclusion, Scalia writes:
"The world does not expect logic and precision in poetry or inspirational pop philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis. Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.” With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.
Justice Clarence Thomas, in his dissent, accuses the majority of misconstruing the due process clause of the constitution, which he says is not "a font of substantive rights". He argues that the "liberty" which the majority says that the petitioners are being deprived of is not one recognized in the Constitution. He adds:
"The majority’s inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty."
Thomas criticizes the majority for ignoring the affect that its decision may have on religion liberty. He writes:
"Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty."
Finally Justice Samuel Alito dissents on much the same ground as Roberts. He argues that this is a decision that belongs to the legislatures, not the courts. He writes: "The Constitution leaves that question to be decided by the people of each State." He is also critical of the majority, writing:
"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 is also concerned about the implications of the decision on the rights of critics of same-sex marriage. He writes:
"Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences. It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent."
He concludes with a caution that this decision is bad for the nation not for its result for same-sex couples, but for its unrestrained example of judicial activism. He concludes his dissent as follows:
"Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.
Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.
"Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of
same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends."