Love may have conquered H8 Friday morning, but the decision was not unanimous.
Neither, as it turned out, were the dissents. In a rare move, each of the four justices who voted against Friday’s historic same-sex marriage ruling — John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito — issued an individual legal justification.
The dissenting justices each railed against the effect of the decision to short-circuit a democratic process that was already ripe in the states. Justice Roberts, in a nice bit of writing, put it this way:
“[H]owever 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. And they lose this just when the winds of change were freshening at their backs.”
The judges also pointed, rightly, to the inevitable conflicts Friday’s ruling will stir among those who claim their homophobia is rooted in religious liberty. Again from Roberts:
“Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples.”
But such thoughtful passages are few and far between. The dissents are defined by the bitterness of dead-enders. The language is cold, snide and postures outrage. They either reject or gloss over the precedent of Loving v. Virginia, which overturned bans on interracial marriage — particularly striking from Justice Thomas, whose marriage would have been illegal in many states a half century ago.
Instead they rail against unelected judges, insist marriage is rooted in procreation and warn that America is now on a slippery slope to polygamy.
Here, the nastiest lines from the dissenting justices.
“The majority’s decision is an act of will, not legal judgment.”
“[T]he 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?”
“[F]or the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.”
“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.”
“The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now.”
“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.”
“I write separately to call attention to this Court’s threat to American democracy.”
“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.”
“Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion…”
“They have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds— minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not.”
“[O]ne would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.”
“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.”
“For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.”
“Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.”
“By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.”
“I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights.”
“[R]eceiving governmental recognition and benefits has nothing to do with any understanding of ‘liberty’ that the Framers would have recognized.”
“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.”