Thoughtful Dissent in Obergefell v. Hodges


Like all Supreme Court opinions, the Obergefell v. Hodges case is a required romp. Like the Windsor case, I gather that Kennedy was the author in order to give the decision a more neutral voice, and the majority opinion was intentionally much shorter than the dissent following. I think it was a good call to allow that side to have more of a say.

The dissent is much more sober and reasoned than the media would lead you to believe. One distracting mantra from the right, in support of opposing this decision, is the term unelected judges. This phrase is quite silly when first bombarded by it, as though it were a badge of shame not to be elected. I’d like to examine the dissent’s point further, because they present it in a more serious light than what has been depicted.

Scalia did a good job explaining what conservatives mean when they say that the Supreme Court has “lost its way”, although I would add that it is up to the reader to determine if its current direction is good or bad. He reminds us that the Constitution is meant to contain laws that should be interpreted as generally or “broadly” as possible. There is truth to the claim that one should be wary of identifying specific implied laws when the original intention is to interpret more broadly. The Constitution has the broadest laws and they are meant to get more specific as you go down to federal laws, state laws, county laws, city laws, etc.

It is for this reason that Roberts and Scalia both clarify that they don’t oppose same-sex marriage itself, but the manner in which a very specific right, such as the right to marry, is erroneously being treated as a very general one:

Petitioners do not contend that their States’ marriage laws violate an enumerated constitutional right…They argue instead that the laws vio­late a right implied by the Fourteenth Amendment’s requirement that “liberty” may not be deprived without “due process of law.”

-Roberts, Page 49

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.

-Roberts, Page 68

[I]t 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.

-Scalia, Page 70

I’m not so inclined to disregard what they have to say this time, primarily because any perceived bitterness is coming from disapproval of the manner in which this victory was achieved, rather than the victory itself. It is as though they left a note in big red letters on the back of the petitioners’ report card: Next time, amend the Constitution.

Then again, the left insists that all that has really changed is understanding that “due process” also applies to any two people marrying each other, regardless of what group they are in. They may also say that the “implied” understanding that marriage is only between a man and a woman needs to be broadened to same-sex couples. Also a compelling argument.

This case has, in a way, enshrined marriage as a fundamental right. Now, every state has to acknowledge every other state’s marriage, even those dirty common-law ones that some states have not wanted anything to do with. Progress!

What say you?

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