SCOTUS: June 26, 2015
June 27, 2015
G.D.O'Bradovich III
background
We know the majority’s opinion in the case of Obefefell v. Hodges, but I was curious as to the reasons why the minority justices dissented. We are fortunate that each dissenting justice wrote their own dissent.
introduction
Since we expect legal reasoning to be clear and concise, that is without recourse to obtuse and contradictory esoteric writing, my commentary will be minimal: Sic Luceat Lux. The dissenters know that Natural Law allows individuals to enter into contracts, and marriage is a contract; so we are forced to conclude there must be a non philosophical rationale to the minority’s reasoning.
justice roberts' dissent
[This] Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us.
And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational.
The Justice seems to believe that the “irrational” has no place in the law.
But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening.
The “government of men” is democracy as Plato understood it.
The majority’s decision is an act of will, not legal judgment.
“Legal judgment to power”
The right it announces has no basis in the Constitution or this Court’s precedent.
“We have more rights than the ancients ever knew.” -Plato, The Republic
It [the Court] seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question.
We infer that the majority is better informed than the “rabble” who are still debating this topic.
I would not “sweep away what has so long been settled” without showing greater respect for all that preceded us.
The real and felt needs of today have no care for history.
This universal definition of marriage as the union of a man and a woman is no historical coincidence.
Even when state laws did not specify this definition expressly, no one doubted what they meant. The meaning of “marriage” went without saying.
They [previous Court rulings] did not, however, work any transformation in the core structure of marriage as the union between a man and a woman.
In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that characterized discredited decisions.
If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.
Once again, the Constitution imposes limits. If it didn’t exist or if we ignore it…
There is, after all, no “Companionship and Understanding” or “Nobility and Dignity” Clause in the Constitution.
SCOTUS humor is arid humor.
Allowing unelected federal judges to select which unenumerated rights rank as “fundamental” — and to strike down state laws on the basis of that determination —raises obvious concerns about the judicial role.
These unnumbered rights are elastic. Here today...
As a matter of constitutional law, however, the sincerity of petitioners’ wishes is not relevant.
The honored Justice believes that wishes have no basis in subjective law.
Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was.
Neither petitioners nor the majority cites a single case or other legal source providing any basis for such a constitutional right. None exists, and that is enough to foreclose their claim.
The Justice seems to understand the Constitution as objective.
Unlike criminal laws banning contraceptives and sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit.
Reasoning can be so...harsh.
It is revealing that the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process. At least this part of the majority opinion has the virtue of candor. Nobody could rightly accuse the majority of taking a careful approach.
This freewheeling notion of individual autonomy echoes nothing so much as “the general right of an individual to be free in his person and in his power to contract in relation to his own labor.”
The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.”
Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences adopted in Lochner.
We learn that “moral philosophy” or Natural Law is distinct from the Constitution.
One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people.
Polygamy can not be denied: “Loves are Loves”
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.
"Stop...making...me...think."
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.
“Loves are Loves”
It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry?
“Loves R us” or “We are called Legion, for we are many.”
I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.
Then and now, this assertion of the “harm principle” sounds more in philosophy than law.
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.
People’s needs of today take priority over outdated tradition.
I agree with the majority that the “nature of injustice is that we may not always see it in our own times.” But to blind yourself to history is both prideful and unwise.
In addition to their due process argument, petitioners contend that the Equal Protection Clause requires their States to license and recognize same-sex marriages. The majority does not seriously engage with this claim. Its discussion is, quite frankly, difficult to follow.
Yet the majority fails to provide even a single sentence explaining how the Equal dissenting Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions.
The Constitution, that Hydra of old, raises its heads.
The role of the Court envisioned by the majority today, however, is anything but humble or restrained.
The time of talk is over, we need action when people are hurting.
Over and over, the majority exalts the role of the judiciary in delivering social change.
In the majority’s telling, it is the courts, not the people, who are responsible for making “new dimensions of freedom . . . apparent to new generations,” for providing “formal discourse” on social issues, and for ensuring “neutral discussions, without scornful or disparaging commentary.
“New dimensions of freedom” corrupts “old dimensions of freedoms”.
The answer is surely there in one of those amicus briefs or studies.
The justice alludes to an answer, but one must search for it.
And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.”
Let’s have a dialogue and discuss our feelings. Our consensus will be the truth. No laws required.
Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is —unlike the right imagined by the majority — actually spelled out in the Constitution.
We have rights from our Creator, rights from the Constitution, and imaginary rights from the Court.
The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.
The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept samesex marriage. That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n] or stigmatiz[e]” same-sex couples
“The Law of unintended necessary consequences”.
It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted.
Harsh, all-too harsh.
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. I respectfully dissent.
justice scalia's dissent
But what really astounds is the hubris reflected in today’s judicial Putsch.
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.
Fundamental rights come in two forms: know and yet to be discovered.
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.
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, 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.
“Scathing: witheringly scornful; severely critical.”
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.
Scathing: The Sequel
Of course the opinion’s showy profundities are often 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.” (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.
The justice has some outdated thinking about the “Freedom of Intimacy”.
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.” (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?)
“Scathing : The Final Chapter”
The world does not expect logic and precision in poetry or inspirational pop philosophy; 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.
“Scathing: The Resurrection”
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.
justic thomas' dissent
Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.
Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.
The justice alludes to the dated idea that our rights and worth come from the Creator; not the Government.
To invoke the protection of the Due Process Clause at all—whether under a theory of “substantive” or “procedural” due process—a party must first identify a deprivation of “life, liberty, or property.”
The majority claims these state laws deprive petitioners of “liberty,” but the concept of “liberty” it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses.
The justice has an antiquated idea of the concept of “liberty”.
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.
A new tradition starts today.
Whether we define “liberty” as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it.
Reasoning makes my head hurt. The justice is clearly incapable of feeling people's needs.
Instead, the States have refused to grant them governmental entitlements.
Entitlements are granted?
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.
But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers would have recognized.
The justice refers to “Framers”, some of the least knowledgeable and most bigoted men of their time.
Instead, it would have included a right to engage in the very same activities that petitioners have been left free to engage in—making vows, holding religious ceremonies celebrating those vows, raising children, and otherwise enjoying the society of one’s spouse—without governmental interference.
At the founding, such conduct was understood to predate government, not to flow from it.
The justice writes that contracts and freedoms to engage in various activities occurred before our Government and do not exist because our Government exists. The justice seems to believe that Natural Law can occur without a government.
Petitioners misunderstand the institution of marriage when they say that it would “mean little” absent governmental recognition.
But “liberty” is not lost, nor can it be found in the way petitioners seek. As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefits
”...and that government of entitlement, and by benefits, and for dignity has not perished…”
The majority’s inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty.
“Carnac the Magnificent”
Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal”. Concerns about threats to religious liberty in this context are not unfounded. During the hey-day of antimiscegenation laws in this country, for instance, Virginia imposed criminal penalties on ministers who performed marriage in violation of those laws, though their religions would have permitted them to perform such ceremonies.
The majority also suggests that marriage confers “nobility” on individuals. I am unsure what that means.
If Socrates does not know what “justice” is, then we can’t expect a judge to know that marriage, not a monarch, confers “nobility”.
People may choose to marry or not to marry. The decision to do so does not make one person more “noble” than another. And the suggestion that Americans who choose not to marry are inferior to those who decide to enter such relationships is specious.
“Specious-superficially plausible, but actually wrong.”
[Our Framers wrote that men are] “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.
The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.
justic alito's dissent
The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.
“The judiciary giveth and the judiciary taketh away.”
At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be.
The justice is incorrect that no one can predict the future with certainty. One only needs to connect “Natural Law” and “Equality” to understand the inevitable. As we speak, representatives from “Polygamous R We” and “NAMBLA” are conspiring in dark corners and reaching a consensus that is unthought of by the majority of Americans: the elimination of a fixed number of people in a marriage and the removal of the legal age of consent. Both restrictions, we are told, are the product of an unenlightened past.
It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.
Who are the determined? Who are the motivated? “Polyamorous R We” and ”NAMBLA”, perhaps?
Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. We will soon see whether this proves to be true.
The justice questions if the “rights of conscience will be protected.” If opposing views to interracial marriage is an indication, then the answer will be in the negative.
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.
The law expands and contracts in direct proportion to feelings-no objective standards are needed.
What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.
conclusion
The dissenting Justices write in a clear and forthright manner and even the those of us with no legal background can understand their reasoning. The Justices do appreciate a philosophical or moral question regarding same sex marriage, but do not see a Constitutional question, since marriage laws have always been the domain of the states.
The Justices are in agreement that Loving did not change the nature of marriage. We understand the justices’ apprehension in the creation of new rights. The genius of our Founding Fathers was to assign rights as coming from the Creator and not from the Government. While the state many confer privileges and entitlements, the state can not revoke what is anterior and beyond its reach, that is, Natural Rights whose origin is in Natural Law. We assign their cautious and deliberate nature to their painful experiences with Great Britain.
Although there is no evidence that any of the dissenting Justices have shown any interest in the Occult or the esoteric or the subjective, that certainly should not be a barrier to their enjoyment of the privileges of conferring and learning from a Master of the Occult Arts and Sciences.
Therefore, in the Modern spirit of conferring benefits and dignity without historical precedent, with the full authority of my Occult powers (those recognized and those yet to be discovered), by the rights and privileges conferred to me by the Ancient Hermetic Order of Hierophants, I duly proclaim upon Justices Roberts, Scalia, Thomas, and Alito the highly esteemed and sought after title of “Honorary Apprentice”.
It is so ordered.
The Justices are in agreement that Loving did not change the nature of marriage. We understand the justices’ apprehension in the creation of new rights. The genius of our Founding Fathers was to assign rights as coming from the Creator and not from the Government. While the state many confer privileges and entitlements, the state can not revoke what is anterior and beyond its reach, that is, Natural Rights whose origin is in Natural Law. We assign their cautious and deliberate nature to their painful experiences with Great Britain.
Although there is no evidence that any of the dissenting Justices have shown any interest in the Occult or the esoteric or the subjective, that certainly should not be a barrier to their enjoyment of the privileges of conferring and learning from a Master of the Occult Arts and Sciences.
Therefore, in the Modern spirit of conferring benefits and dignity without historical precedent, with the full authority of my Occult powers (those recognized and those yet to be discovered), by the rights and privileges conferred to me by the Ancient Hermetic Order of Hierophants, I duly proclaim upon Justices Roberts, Scalia, Thomas, and Alito the highly esteemed and sought after title of “Honorary Apprentice”.
It is so ordered.