Scalia: Gay marriage ruling threatens U.S. democracy
"I write separately to call attention to this Court's threat to American democracy," Justice Antonin Scalia declared in a scathing dissent to the Supreme Court's historic decision Friday to legalize same-sex marriage across the United States.
The Reagan-appointed jurist's social conservatism and sardonic wit melded into a fiery ball of rage against the five justices, led by Anthony Kennedy, who decreed gay marriage a constitutional right.
Scalia argued that the "substance" of marriage laws doesn't concern him greatly; what's of "overwhelming importance" is "who it is that rules me."
"But what really astounds is the hubris reflected in today's judicial Putsch. The five Justices who compose today's majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment's ratification and Massachusetts' permitting of same-sex marriages in 2003," Scalia wrote in a nine-page opinion.
He also joined separate and more measured dissents written by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. "They have discovered in the Fourteenth Amendment a 'fundamental right' overlooked by every person alive at the time of ratification, and almost everyone else in the time since."
"This is a naked judicial claim to legislative, indeed super-legislative, power; a claim fundamentally at odds with our system of government," Scalia wrote. Then he got more personal, declaring that the judiciary is "hardly a cross-section of America," observing that the Supreme Court contains "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."
To Scalia's credit, he had predicted in 2003 that the court had effectively paved the way for legal same-sex marriage when it overturned state bans on consensual sodomy in Lawrence v. Texas. He reiterated that view in the 2013 case U.S. v. Windsor, when the Court ruled that the federal government cannot deny equal benefits to legally married same sex couples. Friday's Obergefell v. Hodges ruling completes his prophecy. All three opinions landed on a June 26, and all were written by Scalia's fellow Reagan appointee, Kennedy.
"The opinion is couched in a style that is as pretentious as its content is egotistic," Scalia wrote, before swiping the five-member majority: "The stuff contained in today's opinion has to diminish this Court's reputation for clear thinking and sober analysis."