Warnings from the Supreme Court

Along with their opinions about the constitutionality of same-sex marriage, the Supreme Court’s four dissenters offered some predictions on what this decision does to our political and social systems. Here are highlights (see also Emily Belz’s “Excerpts from the marriage ruling and dissents”):

Justice Samuel Alito bemoaned the end of any hopes of strict construction: “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 result: “deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.

Justice Clarence Thomas predicted new threats to religious liberty: “Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.”

Chief Justice John Roberts wrote that two would lead to three or four or more: “One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. … If a same-sex couple has the constitutional right to marry because their children would otherwise ‘suffer the stigma of knowing their families are somehow lesser,’ why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability’ serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?”

Justice Antonin Scalia wrote about the decline of representative government as he described a committee of “nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.”

Scalia was noting, of course, “the strikingly unrepresentative character” of the current Supreme Court. He said that “would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis. … 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.”

All four dissenting justices warned that proponents of same-sex marriage might have political power now, but things could change. Alito: “All Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.” Roberts: “[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.”

I’ll give Scalia the last word—actually, the last five words—because he produced a slogan that will soon be on bumper stickers: “To allow the policy question of same-sex marriage to be considered and by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”