U.S. Supreme Court Justice Antonin Scalia, in his dissenting opinion characterized the court’s decision to legalize same-sex marriage as a “judicial putsch” and said it is a “threat to democracy” because it amounts to five justices asserting themselves as rulers over the nation.
The “substance of today’s decree is not of immense personal importance to me,” wrote Scalia in his dissent. “It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”
“The opinion in these cases is the furthest extension in fact – and the furthest extension one can even imagine – of the court’s claimed power to create “liberties” that the constitution and its amendments neglect to mention,” he continued.
Scalia’s point is that the highest U.S. constitutional court has no right to create rights that are not contained in the U.S. Constitution’s Bill of Rights.
Scalia wasn’t so much concerned about the merits of the cases or the substance of the decision. He was expressing his opposition to the court making the decision at all.
Chief Justice John Roberts said in his dissent that the Supreme Court “is not a legislature.”
“Whether same-sex marriage is a good idea should be of no concern to us,” he said in his opinion read from the bench for the first time during his decade as Chief Justice. “Under the Constitution, judges have power to say what the law is, not what it should be.”
He also said, “the fundamental right to marry does not include a right to make a state change its definition of marriage.”
“The Court takes the extraordinary step of ordering every state to license and recognize same-sex marriage,” he said. “…for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens – through the democratic process – to adopt their view. That ends today.”
“Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making dramatic social change that much more difficult to accept,” he wrote.
Samuel Alito wrote in his dissenting argument that the question of gay marriage is left to the people of each state to decide saying, “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.” He said that for the majority the term “liberty” has a “distinctively postmodern meaning,” and that the SCOTUS decision “robs the People” of “the freedom to govern themselves.”
In this confusing time for constitutional jurisprudence, America is in the process of repudiating “every principle of its Constitution as a Protestant and republican government.” (See Testimonies for the Church, Vol. 5, page 451).
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