What Each Supreme Court Justice Who Opposed Marriage Equality Said
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On June 26, 2015, the Supreme Court made history affirming the constitutional right for same-sex marriage. Not everyone is celebrating the Obergefell v. Hodges decision. In fact four judges dissented in the 5-4 ruling. All four of them wrote their own individual dissent, an uncommon occurrence that SCOTUSblog described as, "you know, Bush v Gore rare."
ATTN: has already highlighted five passages from the majority opinion written by Justice Anthony Kennedy. Here are the most notable passages from the dissenting judges:
1. Chief Justice John Roberts
Chief Justice Roberts tried to temper his 29 page dissent by acknowledging the celebrations that the majority opinion would preclude. Yet he still denied that marriage equality was a constitutional right, arguing that marriage equality should have been decided by individual states (before 10:01 AM ET on Friday, 14 states had gay marriage bans). On the twenty-seventh page of his dissent he wrote:
"Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause," Roberts wrote in his dissent. "And they lose this just when the winds of change were freshening at their backs."
He concluded saying:
"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."
2. Justice Antonin Scalia
Next on the list of dissenting Justices was Antonin Scalia, known for his socially conservative positions (he's a staunch Catholic) and his colorful language (earlier this week he used the phrase "jiggery-pokery" in his dissenting opinion in King v. Burwell). Here are Scalia's most scathing passages:
"Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational popphilosophy; 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."
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"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.”26 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."
He also wrote this in the footnotes:
"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."
3. Clarence Thomas
Justice Thomas took issue with the ability for the government to bestow or remove dignity. On page nine of his dissent he wrote:
"Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace. They have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States. They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit."
On page 17 he made comparisons to slavery and internment:
"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."
4. Justice Samuel Alito
In his dissent, Justice Alito stated the following:
"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. E.g., ante, at 11–13. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent."
He concludes with:
"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."
