What surprises me is how the dissent turned out. I thought that Chief Justice Roberts would swing; that Scalia would have the most reasonable dissent; that Alito would be a tool; and that Thomas would display his usual know-nothing jurisprudence. Only Alito was true to form. Thomas actually had a reasonable (though flawed) opinion, while Roberts not only didn’t swing but made a fool and hypocrite of himself. Let’s look at the dissenters in turn, from best to worst.
Clarence Thomas. Thomas argued that the majority is misapplying the 14th Amendment’s Due-Process Clause — which safeguards life, liberty, and property — because, he says, liberty only includes the protection of individual rights against government interference, not the conferral of government benefits:
“Even assuming that the ‘liberty’ in the Due Process Clause encompasses something more than freedom from physical restraint, it would not include the types of rights claimed by the majority. 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.”
He cites evidence indicating that the liberty protected by the clause has been understood in this very limited way, and he is largely correct. But legal critics have noted his two glaring oversights. First, he ignores the 14th Amendment’s even more important Equal Protection Clause, which says that no state shall deny to any person within its jurisdiction “the equal protection of the laws”. The issue is simple: state laws that recognize only opposite-sex marriage unconstitutionally discriminate on the basis of gender and/or sexual orientation, and whenever state laws do discriminate like this (on the basis of of race, gender, and/or sexual orientation) that is usually held to be unconstitutional, irrespective of whether the laws in question grant positive benefits or not. State governments can choose whether or not to provide public education, but it’s unconstitutional for them to be selective in their decision; they can’t provide education only to whites, or only to men.
Second, Thomas isn’t even entirely right on the Due Process Clause, because he ignores the contractual nature of marriage, which is key. The right to freedom of contract has long been understood as a liberty protected by the constitution. Freedom includes the right to voluntarily enter into an agreement that restricts one’s future options in exchange for benefits. Employment contracts and marriage contracts are all forms of liberty. Obviously — and when I say “obviously”, I do mean from a constitutional perspective — a person who is barred from entering into a contractual agreement is less free than the one who can. Marriage is not, as Thomas implies, “just” a matter of getting benefits per se; it’s a matter of entering into a private-party contract.
In my mind, both the Due Process Clause and Equal Protection Clause of the 14th Amendment make same-sex marriage bans unconstitutional. On top of this, there is judicial precedent for striking down marriage bans on the basis of liberty and equity. Loving vs. Virginia invalidated bans on interracial unions in 1967, and Turner vs. Safley did the same for prisoners in 1987. The majority opinion in Obergefell vs. Hodges followed this stream of jurisprudence. It was constitutionally sound.
Antonin Scalia. That leaves us with the three others, who had little to show for themselves. I had thought Scalia would make the best case for the dissent based on his preliminary remarks last month. His concern had been for the right of religious pastors to conduct marriage according to their creed. Gay marriage should be decided by states, he said, because that allows states to make exceptions — for example, that gays can be married, but ministers who don’t believe in gay marriage cannot be forced to marry them. If, on the other hand, the supreme court ruled gay marriage as a constitutional right, ministers wouldn’t be able to opt out.
That was a reasonable argument, but quickly shot down by his colleagues. Unwilling pastors, rabbis, priests, etc. are protected by the First Amendment. They cannot be forced to officiate at marriages they object to. There are rabbis who refuse to conduct marriages between Jews and non-Jews — even though we have a constitutional prohibition against religious discrimination — and those rabbis get all the powers and privileges of the state. Scalia’s objection amounted to a phantom menace, and it’s no surprise he didn’t revisit the issue in his dissent.
So he was left with the lame objection that the majority is using the 14th Amendment in a way that was never intended by its writers:
“When the 14th Amendment was ratified in 1868, every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. The majority 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.”
All that does is beg the question and fail to acknowledge the majority’s points of the Due Process and Equal Protection Clauses.
Samuel Alito. Alito opined that gay marriage isn’t protected by the Due Process Clause because the concept of liberty applies only to those principles that are rooted in U.S. tradition. The concept of gay marriage is too new:
“For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.”
But the majority gives good reasons why that right is fundamental, as we saw above.
Alito also decried a conception of marriage that isn’t focused on procreation. States, he says, have formalized and promoted marriage in order 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. But classic family values are irrelevant here.
“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.”
Or in other words, as he later quipped, “This is a court, not a legislature.” That statement is laughable given the decision he penned only one day before. In King vs. Burwell he saved Obamacare by rewriting one of its statutes — a clear overreach of judiciary prerogative if there ever was one. Obergefell vs. Hodges doesn’t require the overreach. It requires an engagement with the Due Process and Equal Protection Clauses, and the precedents set by previous supreme court decisions. Roberts’ sidestepping of these issues made him a callow hypocrite.