WHEN FIVE LAWYERS RULE THE NATION
THE substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.
Those civil consequences — and the public approval that conferring the name of marriage evidences — can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage.
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 coasttocoast, 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.
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.
Until the courts put a stop to it, public debate over samesex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote.
The electorates of 11 states, either directly or through their representatives, chose to expand the traditional definition of marriage.
Many more decided not to. Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.
The Constitution places some constraints on selfrule — constraints adopted by the
people themselves when they ratified the Constitution and its amendments. Forbidden are laws “impairing the Obligation of Contracts,” denying “Full Faith and Credit” to the “public Acts” of other states, prohibiting the free exercise of religion, abridging the freedom of speech, infringing the right to keep and bear arms, authorizing unreasonable searches and seizures, and so forth.
Aside from these limitations, those powers “reserved to the states respectively, or to the people” can be exercised as the states or the people desire.
These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the states to license and recognize marriages between two people of the same sex.
It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today):
“[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”
But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision — such as “due process of law” or “equal protection of the laws”— it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.
We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to oppositesex couples, the public debate over samesex marriage must be allowed to continue.
But the court ends this debate, in an opinion lacking even a thin veneer or law. Buried beneath the mummeries and straining-tobe-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect. . . .
With each decision of ours that takes from the People a question properly left to them — with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court — we move one step closer to being reminded of our impotence.
Antonin Scalia is an associate justice of the Supreme Court of the United States. The above is excerpted from his written dissent rom the samesex marriage decision.