In a 5/4 decision, the Court invented a new civil right under the banner of equal protection and due process of the law pursuant to the Fourteenth Amendment, by ruling that individual States cannot ban same-sex marriage.
The decision is neither unexpected nor surprising, however the chasm between the slim majority and the minority opinions is startling.
Mr. Justice Scalia characterizes the decision as a threat to American democracy and decries a system of government that makes the people subordinate to a committee of nine unelected patrician lawyers, who are strikingly unrepresentative of the people they serve. He notes the Court’s judges all have law degrees from Yale or Harvard, four of the nine are from New York, eight grew up in either east or west coast states, with only one judge from the large expanse between the two coasts, and not a single south-westerner.
He continues his provocative opinion by musing that the majority’s discovery of a new fundamental right in the Fourteenth Amendment has curiously been overlooked by some of the brightest legal minds in America, referring to Oliver Wendell Holmes, Learned Hand, Louis Brandeis, Benjamin Cardozo, and other brilliant jurists of the past.
Chief Justice John Roberts, in a separate dissent, writes that the majority has not just ignored America’s entire history and traditions but actively repudiates it. He laments that the Court’s imposition of its “reasoned judgment”, devoid of legal principles, or as Justice Scalia observes “lacking even a thin veneer of law”, is actually a lost opportunity for the gay and lesbian community who can no longer obtain true acceptance from their neighbours, “just when the winds of change were freshening at their backs”. Here the Chief Justice is acknowledging that only thirteen states now ban same-sex marriage.
Chief Justice Roberts rejects the majority’s view that Americans who did nothing more than uphold their understanding of marriage as between a man and a woman should be criticized for their alleged disparagement and disrespect of gays and lesbians. He describes the Court’s denouncement of citizens who uphold a Biblical view of marriage as a gratuitous assault on their character:
“It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted.”
Mr. Justice Alito pursues a similar theme writing that the new law will be used to vilify those unwilling to assent to the new orthodoxy, noting that the majority compares traditional marriage laws to laws that denied equal treatment to African-Americans and women, an analogy that he fears will be exploited by those who wish to stamp out any vestige of dissent.
Justice Alito predicts the majority’s imposition of its views on America facilitates the marginalization of traditional Americans who may fall victim to the harsh treatment once afforded gays and lesbians. He says:
“…some may think that turn-about is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.”
Mr. Justice Clarence Thomas sees the majority decision as a threat to religious liberty, as does the Chief Justice who remarks that the “good and decent people who oppose same-sex marriage as a tenet of faith and their freedom to exercise religion is, unlike the right imagined by the majority, actually spelled out in the Constitution.”
Justice Clarence states that the decision on same-sex marriage should have been left to the political process, as the Constitution requires, and had that happened the religious implications would have been considered. He identifies the potential of a ruinous assault on religious freedom.
The chasm between members of the Court is no more apparent than in Justice Scalia’s mockery of the majority’s finding that the marriage bond creates “other freedoms, such as expression, intimacy, and spirituality”, to which he replies “Really? Whoever thought that intimacy and spirituality (whatever that means) were freedoms?…The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.”
While there is much to celebrate in the gay and lesbian community, there is a silent majority who are disappointed, even angry, that their rights under the democratic process have been trampled by five elite lawyers.
Lawdiva aka Georgialee Lang