Go ahead and get all giddy over Justice Kennedy’s marriage equality ruling — it’s fantastic, and there are a ton of amazing quotes peppered throughout.
But what about the dissents? Well, you will probably not be shocked to learn that as delightful as Kennedy’s decision is, the view from Scalia, Thomas, Roberts, and Alito is absolutely crazy.
It starts with Roberts calling marriage bans a “decision to maintain the meaning of marriage that has persisted in every culture throughout human history,” and an “unvarying social institution enduring over all of recorded history.”
Well that’s just wrong. As we know, marriage has varied a lot. Virtually nothing about marriage has persisted throughout every culture. It is in a state of constant change and, though gradual, improvement.
Scalia gets even more intense. He points out that the Supreme Court can’t enforce its rulings without the help of the President:
“Pride, we know, goeth before a fall. The Judiciary … must ultimately depend upon the aid of the executive arm … for the efficacy of its judgments. With each decision of ours that takes from the People a question properly left to them … we move one step closer to being reminded of our impotence.”
It’s hard to tell, but Scalia seems to be predicting that a future administration might refuse to enforce this ruling. That’s pretty much the only way marriage equality could be stopped, and it would be a nuclear option. Essentially, Presidential civil disobedience.
And then there’s this from Thomas:
“human dignity cannot be taken away by the government. Slaves did not lose their dignity … 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…”
Did Thomas just mean to defend slavery? Probably not, but he also probably didn’t mean to suggest that banning marriage is similar to slavery and internment.
In his dissent, Roberts begrudgingly admits that marriage changes, writing “the ‘history of marriage is one of both continuity and change,’ but the core meaning of marriage has endured.”
And there’s the fundamental disagreement. The core meaning of marriage. Is it, as Kennedy says, an embodiment of “the highest ideals of love, fidelity, devotion, sacrifice, and family”?
Or, is it as Alito says, “the one thing that only an opposite-sex couple can do: procreate.”
Kennedy’s description of marriage sure sounds a lot closer to reality than Alito’s.
Alito also throws in a little scare-mongering:
“I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”
Oh. So people who are intolerant of those who are different might be labeled as bigots? How unpleasant for them.