Scalia Dissent: Judicial Gay Marriage Decision Is Jaw-Dropping

Justice Antonin Scalia wrote: “Today’s (Wed June 26, 2013) opinion aggrandizes the power of the court to pronounce the law,” Scalia wrote in the dissenting opinion. It will have the predictable consequence of diminishing the “power of our people to govern themselves,”  He was joined in his dissent by Justices Clarence Thomas and Chief Justice John Roberts, while Justice Samuel Alito wrote a separate dissenting opinion.

Scalia described the “assertion of judicial supremacy over the people’s representatives in Congress and the executive” as “jaw-dropping.”

“It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role,” said Scalia. “This image of the court would have been unrecognizable to those who wrote and ratified our national charter.”

Scalia had particular disdain for fellow Justice Anthony Kennedy’s ruling in the 5-4 case, saying it opened the door for a federal law allowing same-sex marriages.

“It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here — when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it,” he wrote.


He went on to say, “To defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution.

“In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to ‘disparage,’ ‘injure,’ ‘degrade,’ ‘demean,’ and ‘humiliate’ our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence — indeed, had been unquestioned in virtually all societies for virtually all of human history.”

The court’s decision takes issue especially with Section 3 of DOMA, which defined marriage on a federal basis as “only a legal union between one man and one woman as husband and wife” and the word “spouse” referring “only to a person of the opposite sex who is a husband or a wife.”

“DOMA rejects this long-established precept” of states themselves determining the definition of marriage, said the court’s the majority opinion, written by Kennedy.
However, the court’s action goes well beyond merely rejecting a federal definition of marriage, Scalia says.

“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this court’s declaration that there is ‘no legitimate purpose’ served by such a law, and will claim that the traditional definition has the purpose and effect to disparage and to injure the ‘personhood and dignity’ of same-sex couples.”

Many would add that this decision is an all out attack on religion and American traditional culture and societal beliefs.

“The result will be a judicial distortion of our society’s debate over marriage — a debate that can seem in need of our clumsy ‘help’ only to a member of this institution,” said the 77-year-old justice.

Forbes Magazine wrote: Justice Antonin Scalia’s dissent in U.S. vs. Windsor is a masterpiece of withering conservative criticism, excoriating Justice Anthony Kennedy and his liberal collaborators for declaring the federal Defense of Marriage Act (DOMA) unconstitutional when they should have left well enough alone.

Judge Scalia once said, “Activism or restraint depend on the case.”

A few samples:

In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated.

In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement.

And this classic Scalia broadside:

We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

In Scalia’s eyes, the Supreme Court had no business deciding whether DOMA is unconstitutional, because there was no real dispute before the court. Plaintiff Edith Windsor had won her case in the federal courts below and the Obama administration was urging the Supreme Court to leave those judgments intact. To proceed with the appeal anyway, when both sides of the case sought the same result, violated the Constitution’s Article III limiting federal-court jurisdiction to real “cases or controversies.” To do otherwise, Scalia said, “is jaw-dropping.”

It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere `primary’ in its role.

All good stuff, and Scalia makes the perfectly reasonable point that by declaring DOMA unconstitutional without logically explaining why that’s so (he dismissed Justice Anthony Kennedy’s arguments as “legalistic argle-bargle”) the Supreme Court insured it will have to decide later whether state laws banning gay marriage are equally unconstitutional.

Buit Scalia’s passionate cry for judicial restraint in DOMA contrasts with his dissent in the Affordable Care Act case just a year ago. In NFIB vs. Sibelius, he writes on for 65 pages about the many ways in which Congress overstepped its authority and passed a law that should have been struck down in its entirety. When it came to Obamacare, Scalia wrote (it is assumed he wrote the dissent, although it is also signed by Justices Kennedy, Clarence Thomas and Samuel Alito), “the case is easy and straightforward.”

The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce. None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a national-problem power.

Scalia breaks down the ACA into its component parts, devoting paragraphs to each section of the law. Nowhere in his dissent is the sort of detailed analysis of standing that he lays out in the DOMA case, however. He seems untroubled by the question of whether the National Federation of Independent Business and other plaintiffs suing over Obamacare really had suffered injuries from the law, most of whose provisions kick in next year. He accuses the majority of judicial overreach by upholding the law.

In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.

Scalia has a knack for these Churchillian phrases. Here’s what he says about the majority’s opinion in the DOMA case:

Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

There are fundamental differences between the cases. In Obamacare, for example, the parties disagreed. But Scalia admonishes us that disagreement alone isn’t enough to draw the Supreme Court into a political squabble. Surprisingly, for a conservative, he says President Obama could have simply refused to enforce DOMA if he found it unconstitutional.

The matter would have been left, as so many matters ought to be left, to a tug of war between the President and the Congress, which has innumerable means (up to and including impeachment) of compelling the President to enforce the laws it has written.

If Congress doesn’t like how the President is enforcing the laws, Scalia wrote, “its only recourse is to confront the President directly.”

“Unimaginable evil this is not,” he said. “Our system is designed for confrontation.”

Reading Scalia’s dissent, I can’t help but conclude that the important difference between Obamacare and DOMA is the subject matter of the laws. Scalia believes in the power of We The People to legislate morality, and he points to laws banning child pornography, polygamy and all manner of other perceived sins to support his position. For him, DOMA was a legitimate exercise of legislative power to declare, on a federal level, what the rules governing marriage will be, and there was no constitutional question at stake.

The Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.

Scalia’s objections can be prescient. He makes some excellent points, including the chaos that will shortly ensue as couples march into court to determine whether the child-custody laws of their state of residence trump the laws of the state in which they were married, or even which state’s choice-of-law statutes control.

But Scalia’s ire is undermined by his equally passionate defense of judicial activism in the Obamacare case. Like a precocious but volatile child prodigy, he can reason with the best of them and score rhetorical points at will. But Kennedy in DOMA, and Chief Justice Roberts in the Obamacare case, followed the wiser courses. The Supreme Court only has so much institutional power to squander, and fighting Congress or clearly solidifying public sentiment on the truly big questions can be a fool’s errand.

The New Yorker’s Cover Story on June 28th

Bert and Ernie’s “Moment of Joy” – June 28, 2013


“It’s amazing to witness how attitudes on gay rights have evolved in my lifetime,” said Jack Hunter, the artist behind next week’s cover, “Moment of Joy.” Hunter, who originally submitted his image, unsolicited, to a Tumblr.

You be the judge… Take part in the:

Urgent NewsMax Poll: Supreme Court Right on Gay Marriage? Vote Here Now  

Gay marriage opponents ask court to intervene

About Ask Marion

I am a babyboomer and empty nester who savors every moment of my past and believes that it is the responsibility of each of us in my generation and Americans in general to make sure that America is as good or even a better place for future generations as it was for us. So far... we haven't done very well!! Favorite Quotes: "The first 50 years are to build and acquire; the second 50 are to leave your legacy"; "Do something that scares you every day!"; "The journey in between what you once were and who you are becoming is where the dance of life really takes place". At age 62 I find myself fighting inoperable uterine Cancer and thanks to the man upstairs and the prayers from so many people including many of my readers from AskMarion and JustOneMorePet... I'm beating it. After losing our business because of the economy and factors related to the re-election of President Obama in 2012 followed by 16-mos of job hunting, my architect-trained husband is working as a trucker and has only been home approximately 5-days a month since I was diagnosed, which has made everything more difficult and often lonely... plus funds are tight. Our family medical deductible is 12K per year for two of us; thank you ObamaCare. But thanks to donations from so many of you, we are making ends meet as I go through treatment while taking care of my father-in-law who is suffering from late stage Alzheimer's and my mother-in-law who suffers from RA and onset dementia as well as hearing loss, for which there are no caretaker funds, as I continue the fight here online to inform and help restore our amazing country. And finally I need to thank a core group of family, friends, and readers... all at a distance, who check in with me regularly. Plus, I must thank my furkids who have not left my side through this fight. You can see them at JustOneMorePet.
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3 Responses to Scalia Dissent: Judicial Gay Marriage Decision Is Jaw-Dropping

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