In the case of Obergefell v. Hodges the US Supreme Court has decided that the 14th Amendment to the US Constitution obliges all 50 States to recognise and licence Same-Sex Marriages.
The decision was by a majority of 5 - 4 so a very close split for such a fundamental decision with implications that go far beyond the issue of Same-Sex marriage itself. The majority decision was given by Justice Kennedy, supported by Ginsberg J, Breyer J, Sotomayor J, and Kagan J. There was a dissenting Judgment given by Chief Justice Roberts, supported by Scalia J and Thomas J, a dissent by Justice Scalia J supported by Thomas J, another by Thomas J supported by Scalia J and last, but very definately not least a dissent by Alito J supported by Scalia J and Thomas J.
There are specific references in all these judgments regarding its implications for Religious Freedom which I will deal with in a separate Blog but from my point of view the dissenting judgments are more intellectually and legally coherent than the warm words, feel good, fatuousness of the majority Judgment so I will concentrate on them.
The dissenting judgment by Thomas J is particularly interesting in that he attacks what is in effect the new notion of "rights" within western society namely a demand that the Government and State "do something" rather than the historical view that "liberty" involves freedom "from" the state "doing something" and he points out that the decision of the Court is actually subversive and undermining of "Liberty" and "freedom" which are (or should be) the cornerstones of the US Constitution.
P7: "In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement. .....P8 “[T]he common idea of liberty is merely negative, and is only the absence of restraint.” ....... "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" ........P10 "Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages—on state issued marriage licenses, death certificates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers [of the US Constitution] would have recognized."
The Dissent by Scalia J is astonishing in the vehemence of his language excoriating 5 of his colleagues. Like all of the dissenters he makes it clear that his objection is not to Same-Sex Marriage per se, his objection is to Same-Sex marriage being imposed on the entire United States by means of Judicial Decree
P1"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.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".......
He contrasts the difference between a new idea, such as same-sex marriage coming into force as a result of legislative debate rather than through Judicial diktat
P2" 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. 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 government is supposed to work." .....P4"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".........P6"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. 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."
Alito J makes a similar point regarding the fact that the Court is imposing on America a judgment which in a Democracy should be made by the elected representatives of the people.
P6" The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.”
And he points out the long term implications of the way inwhich this decision has been arrived at and the future role of the Supreme Court
P7"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."
The Dissent by Chief Justice Roberts, is more restrained, as one might expect but for that reason is even more damning
P2 "Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be"....."Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. 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." ......
P3 "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."
Interestingly Chief Justice Roberts goes on to compare this decision by the Supreme Court to the infamous "Dred Scott" case where the decision of the then, pro-slavery, Supreme Court to extend the rights of slave owners throughout the entire United States including the Free States was a major factor leading to the subsequent American Civil War.
P11 "The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford, 19 How. 393 (1857). There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. ....... Dred Scott’s holding was overruled on the battlefields of
the Civil War and by constitutional amendment after Appomattox,"
The Chief Justice also dealt with the probability that the logic of the decision by the Supreme Court would lead to legal cases demanding Polygamy, Polyandry and Plural Marriage In terms of American legal history this was not a merely theoretical suggestion. The legal definition of Marriage as being between 2 persons was laid down in the United States by the 1878 case of Reynolds v USA 98 U.S. 145 wchich involved the legality of Mormon Polygamy. (See my Blog for 1 August 2013 on Mormon Polygamy and the Law)
P20 "One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Cf. Brown v. Buhman, 947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 14-4117 (CA10). Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one."
And he, like the other dissenters gives a warning regarding the long term implications of the Courts decision
"P22 "The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can? But this approach is dangerous for the rule of law. The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now"
Or as Scalia puts it more pointedly
P5"A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy."
to which I, as a British rather than an American citizen, can only say "hear hear"