3 Baffling Arguments Anthony Scalia's Dissent Made (Which, BTW, Didn't Really Matter Anyway)
Rejoice, all ye Americans who want equality for every other American — the Supreme Court effectively legalized same-sex marriage across all 50 U.S. states Friday, a seismic shift in the gay rights landscape that will go down in history. In a 5-4 decision, the court's liberal bloc joined with typical swing vote Anthony Kennedy to seal the victory for marriage equality advocates, but that means four conservatives were left a little grumpy. Case in point: here are 3 wrong arguments in Scalia's same-sex marriage dissent.
It should come as little surprise that Scalia — a 79-year-old devout Catholic, defiant conservative, and so-called Constitutional originalist — was unhappy with how this turned out. He authored a scatching dissent in the landmark, 2013 same-sex marriage case United States v. Windsor, and as it turned out, a very prescienct one.
His prediction of how sweepingly the ruling would fuel the rise of marriage equality was, even though he was grumpy about it, played out more or less how he'd imagined. In this instance, however, with the biggest battle left for the same-sex marriage movement in America over and done with, Scalia's opinion came off a little, well... troubled. Here are three of its more absurd moments.
1. He Says The Ruling Threatens American Democracy
Perhaps the headlining complaint from Scalia's dissent, dripping in authoritative fear for our "right to govern ourselves." Writing for the four-justice minority (although all of them offered their own, individual dissents), Scalia argued that the Supreme Court has stripped away Americans' democratic rights.
Today's decree says that my Ruler, and the Ruler of 320 Americans coast-to-coast, is a majority of nine lawyers on the Supreme Court. The opinions 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 failed to mention.
Basically, Scalia is upset that the ruling has forced this change on so many states where a popular vote might not have won the day. Which sounds fair, before you remember that it's firmly within the court's role to rule on injustices and infringements to the civil rights of Americans, which was the core moral and legal thrust of the pro-equality side's arguments. And, frankly, same-sex marriage opponents have yet to mount any coherent defense — in court, or out of it — of how their preferred system isn't explicit discrimination backed by the state, the very sort of thing the court should address.
This, sad to say, is little more than ideological sniping in the aftermath of a stinging loss for Scalia.
2. He Tears Into Justice Kennedy's Writing Style
I'm well aware that nobody's the perfect writer, but going in on one of your colleagues because you're upset about how the ruling turned out — especially when everybody has lifetime tenures — seems a little needlessly snippy, no? But that's exactly the angle that Scalia took when dissecting Kennedy's majority opinion, blasting it as "the mystical aporhisms of the fortune cookie." Here's what made him so upset, as the Huffington Post details.
If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: 'The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,' I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
That's an awful lot of shade to throw over an introduction you didn't like. It'd be helpful if Scalia had expanded on this — did he think Kennedy's words was factually incorrect, or is this just a bit of bitter, last-minute language policing? I'm guessing both, but that doesn't make it any better.
3. He Gets In A Dig At Hippies, And Says Marriage Limits Communication
As Vox detailed, Scalia seems to have some reservations about how marriage changes an intimate relationship — contrary to the notion that marriage tightens unions between people and enhances communication, Scalia believes the opposite, as Vox detailed.
One would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.
For somebody apparently upset by showy language or rhetorical devices, he sure lays it on thick. Maybe this is why he also clarified that "extravagant" thoughts of expressions were fine for dissents, but not the Court's official opinion — a little "do as I say, not as I do?"
As for whether marriage enhances or lessens so-called "Freedom of Intimacy," I wouldn't be so arrogant as to claim there's a definitive answer. Different human beings respond differently when joined at the hip with another person, so Scalia's typically confident declaration is really nothing but a smug, "hey, lemme tell you about marriage!"
Luckily, thanks to the 5-4 ruling, listening to Antonin Scalia grouse about marriage isn't something LGBT activists have to worry about anymore.
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