It was Supreme Court Justice Antonin Scalia who in 2013 predicted “the second shoe to be dropped” in his dissenting opinion in U.S v. Windsor that overturned the Federal Defense of Marriage Act. That second shoe came in the form of Obergefell v. Hodges and Scalia was at the ready once again with his dissenting opinion. While popular media focused on the majority opinion – and ignored its lack of judicial jurisprudence – the dissenting opinions have been either oversimplified, mocked or attacked, as in the situation with Justice Clarence Thomas, which Smokey briefly covered in a prior post.
Scathing at times, and openly mocking the justices in the majority, it is clear from Scalia’s eight-page opinion that his patience has worn thin and that a chasm is ever-widening between judicial constitutionalists and liberal activists on the Court. Here are some out-takes:
We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification.
But the Court ends this debate, in an opinion lacking even a thin veneer of law.
A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.
The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.
The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent.
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.
Another dissenter, Justice Samual Alito, was less caustic in his wording but presented a solid grounding on the historical basis for marriage – in line with his Catholic faith, as well as the implications of opposing the majority opinion:
For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.
If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women.
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.
Scalia was stating the obvious on the inevitable result of judicial activism in his Windsor opinion. Those of us who still care about what little is left of the moral order and the integrity of the Constitution can only hope that his last words are equally prophetic and that the Court is one step closer to being restrained.
While I disagree with the dissenters when they make make references to “the issue should be left to the states…”, – in moral matters the issue needs to be left to God, their references to settled law are numerous and points are well stated. I encourage all the Junto members and other people of good will to read the four dissenting opinions. Use the truth, logic and wisdom they contain when discussing with others the tragic consequences of this and other instances of judicial over-reach.