Whatever else they may be, in their marriage-equality dissents the conservatives on the U.S. Supreme Court are neither impartial nor innocent callers of balls and strikes, as Chief Justice Roberts famously feigned at his confirmation hearing. It doesn’t take much understanding of the role of the Supreme Court to recognize which of the verbiage in their dissents had nothing to do with it. Even Justice Kennedy’s opinion for the majority, poetic as it was in places, was laden with chaff. He concluded:
“It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
I agree, of course. But the entire opinion could have been rendered with the last two sentences alone. Clarence Thomas (in whose lifetime his own marriage was illegal until the Supreme Court invalidated laws prohibiting it) was having none of that dignity stuff, asserting, as jaws dropped: “Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved.” That’s some strict interpreting!
No longer bothering even to pretend, Antonin Scalia could only splutter and fume: “This is a naked judicial claim to legislative — indeed, super-legislative — power. … Except as limited by a constitutional prohibition … the States are free to adopt whatever laws they like. … A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
Every high school student should know how wrong that is. Surely he’s heard of judicial review. If not, what did he mean by “except as limited by a constitutional prohibition”? That’s precisely the job of the court: to determine when laws violate the Constitution. He may not like the decision (I’ve disliked many of his, in which he did exactly what he decries in this opinion: did he forget them?) but to say that it’s inconsistent with democracy is to ignore a founding constitutional principle, settled since Marbury v. Madison. So he went for hysterical hyperbole. So did Mr. Alito, warning “people will have to whisper their beliefs in the recesses of their homes.” That’s what plops from the south end of a north-facing horse, the sort of fear-mongering vote-fishing jiggery-pokery we expect from Fox “news,” not from a member of the highest court in the land.
Other than his bizarre anthropology lesson, Mister Justice Roberts was slightly more temperate, if no less wrong: “It is instead about whether … [the definition of marriage] should rest with the people. … The Constitution leaves no doubt about the answer.” He’s right in his last sentence, but like Scalia, startlingly wrong in its application. This no more about “redefining” marriage than “Loving v. Virginia” was. It’s about equal rights under the law; no more, no less. It could just as well have been about the ability of states to restrict public education to heterosexuals. What could be a more central role of the Supreme Court than determining whether the Constitution allows such proscription? Claims about love or children or lessons on Aztec and Carthaginian conjugal habits are beside the point. In making those arguments, the court is trying to define marriage, which is not their job. Theirs is to act when “the people” produce laws contrary to our Constitution. If the furious four were what they claim to be, instead of agenda-driven ideologues, the decision would have been unanimous.
Predictably, presidential candidates from the party of patriotism have rushed to the unconditional embrace of Fox “news,” unfurling their intention to ignore the law, adjuring others to join them. That’s not merely historical ignorance: it’s traitorous sedition, leaving us to wonder why they hate America so much. As they shamelessly whip up outrage over a non-existent attack on religion, let’s note that none has explained why all must follow their preferred religious views, or how same sex marriage harms the rest of us. I just checked, and, by golly, I’m still married. Forty-four years.
Sid Schwab is a surgeon and Everett resident. His email address is columnsid@gmail.com.
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