A few commenters suggested that I focused too much on the flaws in Kennedy’s historic opinion for the Court Friday and not enough on the infinitely worse dissents. And…they have a point. Part of this is that I never had any doubt about how the case would come out. I didn’t bother to point out Roberts’s endorsement of stop-hitting-yourself theory because the outcome of the case was much less certain and as long as he arrived at that outcome how he did it was far less important (and, in addition, apart from that lapse the opinion was a home run.) It was easier to quibble with Kennedy because I knew he’d do the right thing in his vote, which isn’t entirely fair. Certainly, some fuzziness and rhetorical overreaching seem relatively trivial when compared with Scalia’s SCORCHING HOT TAKES.
Fortunately, many smart people have produced excellent commentary on the bankrupt dissents. Judge Posner:
Related to the preceding point, the chief justice’s dissent is heartless. There is of course a long history of persecution of gay people, a history punctuated by such names as Oscar Wilde, Pyotr Ilyich Tchaikovsky, and Alan Turing. Until quite recently, many American gays and lesbians took great pains to conceal their homosexuality in order to avoid discrimination. They value marriage just as straight people do. They want their adopted children to have the psychological and financial advantages of legitimacy. They are hurt by the discrimination that the dissenting justices condone. Prohibiting gay marriage is discrimination.
Justice Samuel Alito’s dissent, to which I turn briefly, ascribes to the states that want to forbid same-sex marriage the desire “to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples.” That can’t be right. States that forbid same-sex marriage do not do so in an effort to encourage gays and lesbians to marry people of the opposite sex and thereby procreate. The nation is not suffering from a shortage of children. Sterile people are not forbidden to marry, though by definition they do not procreate. There is no greater reason to forbid gay marriage, which is actually good for children by making the children adopted by gay couples (and there are a great many such children), better off emotionally and fiscally.
Alito says that states that want to prohibit same-sex marriage “worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay.” This doesn’t make sense. Why would straight people marry less and procreate less just because gay people also marry and raise adopted children, who, but for adoption, would languish in foster homes?
He adds: “Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.” But why should the people who control a state have the right to deny the right of some of their fellow citizens to marry, without a reason? Alito has no answer.
None of the points made by the dissenters withstands critical scrutiny – not least the claim that because marriage originated as an institution to address accidental procreation by heterosexuals, a state has a rational (much less compelling) interest in forbidding gay and lesbian couples from participating in the modern institution of marriage.
Still less persuasive is the dissenters’ repeated insistence that this case differs from prior marriage cases because those cases did not involve the definition of marriage. To quote Justice Antonin Scalia’s acerbic dissent, “Huh?” Would the eight Justices who signed onto the fundamental rights portion of Loving v. Virginia have reached a different conclusion if the Virginia statute defined marriage as an institution between a man and a woman of the same race?
Chief Justice John Roberts, in the principal dissent, sets forth the most elaborate argument, but fundamentally he makes three points: (1) there is a difference between support for same-sex marriage as a policy matter and as a constitutional matter; (2) premature constitutionalization of a right that cannot yet be said to be deeply rooted in the nation’s history and traditions risks undermining long-term support for the right because defeat of the anti-same-sex-marriage position in the democratic process would be more acceptable; and (3) the majority’s logic opens the door to claims such as a right to polygamy. Beyond that, his dissent repeatedly compares the ruling to Lochner v. New York, citing the case a whopping sixteen times.
Nearly all of what the Chief Justice says would work equally well as an argument against all unenumerated rights, indeed, against all judicial decisions that draw inferences from vague language contained in enumerated rights as well. The other dissents do not fare better.
Justice Scalia replies: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began” in this way, “I would hide my head in a bag.” This from a Justice who – just in cases that are centrally relevant to the issue in Obergefell – once began a dissent by accusing the Court of mistaking “a Kulturkampf for a fit of spite” (as though Prussian anti-Catholic policies were an appropriate model for Colorado’s treatment of its gay and lesbian minority), in another dissent compared same-sex intimacy to bestiality, and in a futile effort to read Loving as having nothing to do with evolving values, invented his very own inaccurate text of the Fourteenth Amendment.
Forget about the bag. Justice Scalia should not appear in public except in a full burka.
Both are worth reading in their entirety.