Now that we have had time to digest the Supreme Court’s landmark 5-4 decision on marriage equality, the time has come to take a closer look at the logic by which the majority in the Court arrived at their decision and the reasoning (or lack thereof) by which the dissenters found that there is no constitutional right to marriage equality. In his majority decision, Justice Anthony Kennedy wrote
Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.
The Court’s majority opinion is fairly straightforward: the Fourteenth Amendment is to be taken at face value when it states that
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Chief Justice John Roberts, on the other hand, expressed sympathy with gay and lesbian Americans who will benefit from the Court’s majority decision but does not find that the Court’s decision is based on a sound reading of the Constitution:
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
Justice Scalia was more scathing in his attack on the majority decision, stating that
“A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
Robert’s Objection: The Constitutional Argument
It is true that the word marriage does not appear anywhere in the United States Constitution’s original text or any of its 27 amendments. However, there are thousands of legal rights and protections which aren’t specifically spelled out in the Constitution which it nonetheless applies to. Stephen Colbert once mocked a Georgia Congressman who opposes gay marriage by asking if gays should be allowed to have driver’s licenses. The right to drive a car is not mentioned anywhere in the Constitution, but a law which denied some the right to be a licensed driver based on race, sex or sexual orientation would of course violate the 14th amendment. Equal protection under the law is a requirement for all laws passed by city, state and federal legislatures no matter what right those laws might be regarding.
Also, Roberts has a very short memory if he thinks he is in a position to criticize his fellow justices for finding a Constitutional right where none is specifically spelled out in the document. In his concurring 2010 opinion in Citizens United v. F.E.C., Roberts concluded that corporations are protected by the First Amendment when they wish to influence the political process via campaign contributions or ads on a candidate’s behalf. Last year in the Hobby Lobby case, Justice Roberts joined in the Court’s majority opinion which affirmed that ‘closely held’ corporations like Hobby Lobby have the right to deny birth control coverage to employees under the Religious Freedom Restoration Act. The word corporation does not appear anywhere in the United States Constitution, but justice Roberts does not have any problem deciding that corporations are people and have rights defined by the Bill of Rights. Either Roberts truly believes this stuff or he is just doing what George W. Bush appointed him to do. Neither possibility is less troubling than the other.
Scalia’s Argument: This Decision Subverts Democracy
Antonin Scalia’s dissenting argument was that the issue of defining marriage should be done through the democratic process rather than through judicial fiat: the principle of ‘no social change without representation’ is even more fundamental than ‘no taxation without represenation,’ Scalia wrote. This might be a legitimate point of view coming from a jurist who consistently hold to it, but Scalia joined his fellow conservatives in striking down Section Four of the Voting Rights Act which required sections of the country with a history of voting rights abuses to face monitoring and scrutiny. In 2006 Congress reauthorized all provisions of the Voting Rights Act by an overwhelming majority and President Bush signed the reauthorizing bill. The people’s representatives spoke with a united voice, and Scalia had no problem subverting the people’s will to strike down a provision ensuring that voting rights are protected in parts of this country where they have been historically denied. Since the Constitution has been amended four times to expand or protect voting rights, one would think that Justice Scalia could see that the will of the American people (even those lowly non-corporation people) has been loud and clear on this matter. Scalia apparently believes that the will of the people should count only when social progress and equal rights are hindered as a result.
The point is not simply to gloat now that those on the right side of history when it comes to marriage equality have won their decades long battle. The reason why these dissenting opinions from Roberts and Scalia must be dissected is to remind us of whose side the conservatives on the Supreme Court are really on. Justices who can’t interpret the Constitution as upholding equal rights on a civil matter like marriage when the 14th amendment is staring them in the face but can find 1st amendment rights for the legal fictions that are corporations are not what we need to ensure equal right and justice for us all. Let us remember the twisted logic of these Reagan and Bush appointed Court members when we cast our ballots for the next chief executive of the United States in 2016.