“[This court includes] not a single evangelical Christian (a group that comprises about one-quarter of Americans), or even a Protestant of any denomination.” – Justice Antonin Scalia
That fact, illuminated by Justice Scalia, is very revealing in light of this week’s SCOTUS decision on same-sex marriage, as well as the Obamacare decision earlier in the week.
The founders of America were largely Protestant. Is their Constitution under fire? Is this less about constitutional fortitude and more about anti-Christian bigotry?
Consider the words of the dissenters in the following mock interview.
What has really changed in light of the Supreme Court’s decision on marriage redefinition this week?
Justice Samuel Alito: 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.
Has the U.S. Constitution become a “living document” to SCOTUS?
Chief Justice John Roberts: Neither petitioners nor the majority cites a single case or other legal source providing any basis for such a constitutional right. None exists, and that is enough to foreclose their claim.
Alito: Our Nation was founded upon the principle that every person has the unalienable right to liberty, but liberty is a term of many meanings. For classical liberals, it may include economic rights now limited by government regulation. For social Democrats, it may include the right to a variety of government benefits. For today’s majority, it has a distinctively postmodern meaning.
Will the decision on gay marriage lead to full legalization of polygamy?
Roberts: One immediate question invited by the majority’s position is whether states may retain the definition of marriage as a union of two people. Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.
It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?
When asked about a plural marital union at oral argument, petitioners asserted that a state “doesn’t have such an institution.” But that is exactly the point: The states at issue here do not have an institution of same-sex marriage, either.
Did the majority ruling improperly apply the Due Process Clause of the Constitution?
Roberts: The majority’s understanding of due process lays out a tantalizing vision of the future for members of this court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can? But this approach is dangerous for the rule of law.
Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.
Has the SCOTUS become a court of unbridled judicial activism/supremacy?
Roberts: Allowing unelected federal judges to select which unenumerated rights rank as “fundamental” – and to strike down state laws on the basis of that determination – raises obvious concerns about the judicial role.
As a result, the court invalidates the marriage laws of more than half the states and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?
Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description – and dismissal – of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been “extensive litigation,” “many thoughtful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone. What would be the point of allowing the democratic process to go on? It is high time for the court to decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.” The answer is surely there in one of those amicus briefs or studies.
[T]his court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.
Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.”
Scalia: This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
Can pastors refuse to marry same-sex couples?
Roberts: Respect for sincere religious conviction has led voters and legislators in every state that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.
Can agencies/bakeries/Christian-owned businesses decline to serve same-sex couples if it is against their beliefs?
Roberts: Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage – when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the solicitor general candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. There is little doubt that these and similar questions will soon be before this court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.
By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history – in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage – have acted to “lock … out,” “disparage,” “disrespect and subordinate” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors. These apparent assaults on the character of fair-minded people will have an effect, in society and in court. Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted.
Is the decision, in any way, constitutional?
Roberts: If you are among the many Americans – of whatever sexual orientation – who favor expanding same-sex marriage, by all means celebrate today’s decision. 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.
The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this court’s precedent.
Scalia: 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.
Justice Clarence Thomas: Had the majority allowed the definition of marriage to be left to the political process – as the Constitution requires – the people could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.
Our Constitution – like the Declaration of Independence before it – was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from – not provided by – the state. Today’s decision casts that truth aside.
Who are the real losers in the decision?
Roberts: Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.
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 a dramatic social change that much more difficult to accept.
Thomas: The majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea – captured in our Declaration of Independence – that human dignity is innate and suggests instead that it comes from the government.
Is this the end of our republic, or are conservatives being dramatic?
Scalia: A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.
This is a naked judicial claim to legislative – indeed, super-legislative – power; a claim fundamentally at odds with our system of government.
Roberts: The court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it.
Will this decision lead to more anti-Christian bigotry?
Thomas: The majority’s inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty.
In our society, marriage is not simply a governmental institution; it is a religious institution as well. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.
Alito: Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences. It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.
What role does the last sweeping SCOTUS decision supposedly based on “due process” (Roe v. Wade) play in all of this? Hasn’t abortion and sex-ed improved the lives of children and families, aka Planned Parenthood?
Alito: If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed. Today, for instance, more than 40 percent of all children in this country are born to unmarried women. This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage. …
Who, really, are the justices? More importantly, who are they not? Not one Southwesterner? Not one Westerner? Not a single evangelical Christian (a group that comprises one-quarter of America)? Not a single Protestant? Is this Supreme Court in any way representative of America, or worthy of fundamental transformation without representation?
Scalia: The federal judiciary is hardly a cross-section of America. Take, for example, this court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in East- and West-Coast states. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But, of course, the justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
The opinion is couched in a style that is as pretentious as its content is egotistic.
Thomas: Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our nation has long sought to protect.
(Quotes taken directly from dissents. Questions strictly from the imagination of the author. No actual interview ever took place.)