Dissenting Justices: Court's decision imperils democracy, religious liberty

by Gregory Tomlin, |
Gay rights supporters celebrate after the U.S. Supreme Court ruled that the U.S. Constitution provides same-sex couples the right to marry, outside the Supreme Court building in Washington, June 26, 2015. The court ruled 5-4 that the Constitution's guarantees of due process and equal protection under the law mean that states cannot ban same-sex marriages. The dissenting justices issued blistering rebutals speaking of subverted democracy and endangered vital iberties. | REUTERS/Jim Bourg

WASHINGTON (Christian Examiner) – Four Supreme Court justices – including Chief Justice John Roberts – have issued blistering dissents to the court's 5-4 decision in Obergefell v. Hodges, which now legalizes same-sex marriage nationwide.

All of the dissenting justices claim the court's majority has, in permitting same-sex marriage under the auspices of the Fourteenth Amendment, subverted democracy and endangered vital liberties that allow for dissent on religious and philosophical grounds.

While none of the justices argues the morality or immorality of same-sex marriage, all four wrote the nation's founders insisted states, and not the federal government, possessed the right to determine their own marriage laws, as well as all laws deriving from areas of power not prescribed to the federal government in the Constitution.

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.

Roberts, who wrote the primary dissent in the case and was joined in it by Justices Samuel Alito, Antonin Scalia and Clarence Thomas, wrote that the court had taken on the role of the legislature in the ruling, adding that whether or not same-sex marriage should be law "should be of no concern to us."

"Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise 'neither force nor will but merely judgment,'" Roberts wrote.

Roberts also wrote that a fundamental right to marry cannot compel a state to changes its definition of marriage. They are free, Roberts wrote, either to expand the definition of marriage or to maintain a definition "that has persisted in every culture throughout human history."

Justice Antonin Scalia wrote in a separate dissent that he agreed with Roberts "fully" and wrote separately to "call attention to this Court's threat to American democracy."

"When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases," Scalia wrote.

"Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its 'reasoned judgment,' thinks the Fourteenth Amendment ought to protect."

Scalia called the court's overreach a "naked claim to legislative – indeed, super-legislative – power; a claim fundamentally at odds with our system of government."

Scalia lamented the emotionalism of the justices ruling in the majority and said too much of their legal opinion was tied to what personally offended them – a key reason many conservatives called for Justice Ruth Bader Ginsburg and Justice Elana Kagan to recuse themselves from the case. Both justices had previously stated their support for same-sex marriage and participated in same-sex weddings.

"A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy," Scalia wrote.

"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. ...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."

Scalia said the national debate that was taking place over the issue of same-sex marriage was the way the Founders intended for democracy to work. In fact, he wrote, it was democracy "at its best."

People were free to persuade the other side and to argue passionately for their views. As the slow process of change in public opinion took place, Americans in various states "considered the arguments and put the question to a vote." Where same-sex marriage was adopted democratically, there was not an issue. Where it was forced on the people by the judiciary, there was.

Justice Thomas also wrote a dissenting opinion, joined by Scalia, which also claimed the court had misinterpreted the Fourteenth Amendment. Thomas said it is not, as the majority claimed, "a font of substantive rights."

Thomas wrote that the concept of "liberty" used by the majority in their ruling was very different than the concept of liberty in the Due Process Clause of the Fourteenth Amendment. Thomas said the clause should only be used contextually when discussing an actual deprivation of rights, liberty or property, or to guarantee "freedom from physical restraint and imprisonment."

To Thomas, the Fourteenth Amendment – as Roberts wrote – cannot be used to create new rights or liberties.

"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 wrote. "Aside from undermining the political processes that protect our liberty, the majority's decision threatens the religious liberty our Nation has long sought to protect."

Thomas said marriage is "not simply a government institution; it is a religious institution as well."

"Today's decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples. The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph."

Thomas was referencing Justice Anthony Kennedy's ineffectual claim in the majority opinion that the First Amendment "ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths." Thomas wrote he believes religious liberty may not last.

"Religious liberty is about more than just the protection for 'religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.' Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice."

"Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One's liberty, not to mention one's dignity, was something to be shielded from—not provided by—the State. Today's decision casts that truth aside. In its haste to reach a desired result, the majority misapplies a clause focused on 'due process' to afford substantive rights, disregards the most plausible understanding of the 'liberty' protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society," Thomas wrote.

Roberts noted the same in his ruling. He wrote that states had enacted laws permitting same-sex marriage, but in each case had created laws of accommodation for those with religious objections and wanted to avoid becoming entangled in the practice. Roberts said the court's ruling now does not create "any such accommodation."

"The majority graciously suggests that religious believers may continue to 'advocate' and 'teach' their views of marriage. The First Amendment guarantees, however, the freedom to 'exercise' religion. Ominously, that is not a word the majority uses."

Justice Alito, during the oral arguments for the case, pressed same-sex marriage proponents hard on the concept of the conflicts that could arise between them and opponents of the practice on religious grounds. Then, attorneys for the same-sex lobby noted such disputes were going to be an "issue." Alito said the theoretical issues same-sex marriage creates are now literal.

"Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools," Alito wrote.

"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."

Scalia also said he believes the Constitution reserved the right of constructing marriage laws to the states.


"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."

"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." As a result, the 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?"

"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.'"

"Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer."


"This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. 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. 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."

"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."


"The Court's decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a 'liberty' that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it."

"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. Nor, under the broader definition, can they claim that the States have restricted their ability to go about their daily lives as they would be able to absent governmental restrictions. Petitioners do not ask this Court to order the States to stop restricting their ability to enter same-sex relationships, to engage in intimate behavior, to make vows to their partners in public ceremonies, to engage in religious wedding ceremonies, to hold themselves out as married, or to raise children. The States have imposed no such restrictions. Nor have the States prevented petitioners from approximating a number of incidents of marriage through private legal means, such as wills, trusts, and powers of attorney."

"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."


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