Scalia Dissent: I write separately to call attention to this Court’s threat to American democracy

I write separately to call attention to this Court’s threat to American democracy. The substance of today’s decree is not of immense personal importance to me.

The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. 2 OBERGEFELL v. HODGES SCALIA, J., dissenting Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. 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. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. 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.

Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to.1 Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of govern- —————— 1Brief for Respondents in No. 14–571, p. 14. Cite as: 576 U. S. ____ (2015) 3 SCALIA, J., dissenting ment is supposed to work. 2

The Constitution places some constraints on self-rule— constraints adopted by the People themselves when they ratified the Constitution and its Amendments. Forbidden are laws “impairing the Obligation of Contracts,”3 denying “Full Faith and Credit” to the “public Acts” of other States,4 prohibiting the free exercise of religion,5 abridging the freedom of speech,6 infringing the right to keep and bear arms,7 authorizing unreasonable searches and seizures,8 and so forth. Aside from these limitations, those powers “reserved to the States respectively, or to the people”9 can be exercised as the States or the People desire. These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process?

Of course not. It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today):

“[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”10 —————— 2Accord, Schuette v. BAMN, 572 U. S. ___, ___–___ (2014) (plurality opinion) (slip op., at 15–17). 3U. S. Const., Art. I, §10. 4Art. IV, §1. 5Amdt. 1. 6 Ibid. 7Amdt. 2. 8Amdt. 4. 9Amdt. 10. 10 United States v. Windsor, 570 U. S. ___, ___ (2013) (slip op., at 16) (internal quotation marks and citation omitted). 4 OBERGEFELL v. HODGES SCALIA, J., dissenting “[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”11

But we need not speculate. 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. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.12 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. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.

But the Court ends this debate, in an opinion lacking even a thin veneer of law. 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.13 That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its —————— 11 Id., at ___ (slip op., at 17). 12See Town of Greece v. Galloway, 572 U. S. ___, ___–___ (2014) (slip op., at 7–8). 13 Ante, at 10. Cite as: 576 U. S. ____ (2015) 5 SCALIA, J., dissenting dimensions . . . . ”14 One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”15 The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.”16 Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.17

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section —————— 14 Ante, at 11. 15 Ibid. 16 Ante, at 10–11. 17 Ante, at 12–18. 6 OBERGEFELL v. HODGES SCALIA, J., dissenting of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers18 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 Americans19), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval 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; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved 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.

But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that —————— 18The predominant attitude of tall-building lawyers with respect to the questions presented in these cases is suggested by the fact that the American Bar Association deemed it in accord with the wishes of its members to file a brief in support of the petitioners. See Brief for American Bar Association as Amicus Curiae in Nos. 14–571 and 14– 574, pp. 1–5. 19See Pew Research Center, America’s Changing Religious Landscape 4 (May 12, 2015). Cite as: 576 U. S. ____ (2015) 7 SCALIA, J., dissenting 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 2003.20 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. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,21 cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.

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.22 Of course the opinion’s showy profundities are often —————— 20 Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003). 21 Windsor, 570 U. S., at ___ (ALITO, J., dissenting) (slip op., at 7). 22 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 8 OBERGEFELL v. HODGES SCALIA, J., dissenting profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”23 (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”24 (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.”25 (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court —————— 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. 23 Ante, at 13. 24 Ante, at 19. 25 Ibid. Cite as: 576 U. S. ____ (2015) 9 SCALIA, J., dissenting really dislikes. 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.

* * * 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. ——————

Any conceivable combination that can benefit from the status of “marriage” will now have a claim upon the term, according the this fascist court.

“That’s OK. The country is going to dissolve itself. States outside of the Northeast and mid-Atlantic, rust belt and Pacific coast won’t stand for this. The south, Texas, and most of the Midwest and Mountain West are going to go there own way sooner or later. At least then we’ll have someplace to go.”

We already moved to the south, in anticipation of CWII.

California isn’t going anywhere, except further to the political left, and Texas in middle school is very different from Texas today. Don’t count on divine intervention to get us out of a mess born of our own inaction.

I was born and raised in Texas. I’m surprised she hasn’t switched to blue ling before now. Hearing English us a rare treat in many places.

I’d suggest everyone flee the border states. When CWII commences, the 3rd world illegals will have carte blanche to do anything they want.

The irony is that the system was designed with balancing branches of government. Our founding fathers knew that one individual, be it a king, czar, dictator, whatever, was not wise enough, benevolent enough, to rule single handedly. So they gave us the three branches of govt so as to hold each other in check.

What they did not see was that with our system of government, given enough time, it would be possible for the country to fall into the hands of evil people anyway. It's almost as if a satanic mastermind orchestrated our descent into madness. It's almost as if this mastermind gained control of every powerful influence in America. (Entertainment, education, government, the courts.) Almost.

I disagree. Conservatives can very well run the Republican party. The problem is that the Republican party was hijacked by liberals (Jorge Busho and company), libertarians (who flooded our party because they had no viable party of their own), and liberals who realized we were the party of freedom. The problem with liberals is that they only want the freedoms they want, and that’s not freedom. That’s legalism.

California isn’t going anywhere,

Watch Mt. Rainier in Washington state. It'll signal the break up of America.
California is going to fall into the ocean. In fact, the land will disappear all the way back to Nevada. There will be three breaks spread out over time to allow for repentance, but the people will not repent.
There's going to be a cleansing. All heavily liberal areas will be cleansed, including the southern and eastern seaboards (and all those people and areas with the same totalitarian mindsets around the globe).
The whole world will once again be able to live in peace once those who believe only they can sit on the throne and rule the world through sin and chaos are gone.
Nature and natures God demands order and balance. Those with the liberal mindset are considered a disease to nature. Nature and natures God will cleanse the world of this plague. You can bet your eternal soul on it.

Diabolical forces are eternal, and they exist. They're formidable, because they have access to powerful minds that ignorantly or selfishly invite them in.

The name of the evil mastermind is what is key.

His name is Man.

And what makes him evil is his desire to impose his will on other men.

I don’t think that we are going to be able to escape the dark side of our own species.

Conservatives can run the Republican Party? Sure anything is possible I suppose. I am commenting on your use of the term “we”. Who is “we”? Conservatives have no power and are unable to even replace RINO leaders in the Republican party. So your comment that “we” should remake the entire country is sort of irrelevant until “we” conservatives have the power to do so.

I have no idea what you are talking about. :-) Power matters. Until conservatives have power and can use their power to enact change this is all interesting academic discussion on a message board

Bad idea! Justice James Clark McReynolds resigned (took senior status) in 1941 when he was the very last of the great Four Horsemen (Vandevanter, Butler and Sutherland had been the others) on the SCOTUS. His resignation did not roll back the New Deal.

This once great country of ours has now joined the rest of the world for a one-way trip to hell. And this is only the beginning. I can’t imagine what it will be like 10 years from now. God Help Us.

Is there a reason not to immediately push for a constitutional amendment defining marriage as one man and one woman?

To what end? The court has blatantly ignored the constitution, not just with the last 2 cases, but back to Roe v. Wade. They would just ignore your new amendment.

>>Fundamental Transformation, complete.<<

I’m afraid this is not true. Obozo still has another 17 months left in office.

Gun control is coming. Not sure in what form, but Obozo is not going to let this last shooting go to waste.

I’m not just saying this to post...I feel it in my gut.

Irrelevant, the game is over. Obama has done exactly what he was hired to do, he has taken down America. Barack HUSSEIN Obama, the most devastating, well-planned terrorist attack to ever strike American soil. The only mystery that remains, is, who is he and who does he work for........ the Islamic terrorists, communists, or satan?

They hit our financial sector with international manipulation weeks before he was elected, to assure his election. The financial takeover commenced, banking, manufacturing, healthcare and just this week, trade. The social takeover is just about completed, media, military, open borders, same sex marriage, legalization of marijuana, racial conflict. The last shoe to drop will be the 2nd amendment, and that will be a snap, because while we have been sleeping, I suspect there is a domestic army already in place.

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