SCOTUS Justices on Obergefell v. Hodges

UPDATE: Neil Addison, an outstanding barrister in England, has comments on the opinions.  Given Justice Thomas references to Magna Carta, it is appropriate to link to the esteemed legal scholar.  HERE  He has some great comments.

____ ORIGINAL: Published on: Jun 26, 2015 @ 12:43

I have now read all of the Slip opinions from today’s SCOTUS decision on Obergefell v. Hodges.  HERE

In this post I will add, over time, quotes which interest me from the opinions.

The moderation queue is ON.  You can add quotes.  Be sure to note the Justice and the page of the Slip opinion.  I might allow discussion along the way, but right now I’m interested mostly in a florilegium of quotes.

Many will probably start with Justice Scalia (I get to him along the way… don’t miss it).  I’ll start with the last dissenting opinion from Justice Alito.

He starts out with a statement that the majority’s understanding of “liberty” is “post-modern” (p. 2).

For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional pro- tection upon that right simply because they believe that it is fundamental. (p. 3)

As I read in another opinion, Justice Alito also mentions the shift in view of marriage involving “romantic love” (as does C. Justice Roberts p. 7).  Alito, citing his opinion in Windsor:

As I wrote in Windsor:

“The family is an ancient and universal human in- stitution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. Past changes in the understanding of marriage—for example, the gradual ascendance of the idea that romantic love is a prereq- uisite to marriage—have had far-reaching conse- quences. …” (p. 5)

And, here is something that I am deeply concerned about, Justice Alito wonders what the ramifications of this will be.  Note that he (like Justice Thomas in his dissent) separates this issue from “civil rights”:

Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. [The other dissenting Justices make that point.] 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. E.g., ante, at 11–13. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent. [to the “new orthodoxy”.]

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reas- sure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. [NB] 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.  [It is interesting that when the majority mentions religious liberty in their “reassurances”, so to speak, they omit the word “exercise” of religion.  Roberts makes that point on p.28.]

The system of federalism established by our Constitu- tion provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex mar- riage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facili- tates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turn- about is fair play. But if that sentiment prevails, the Na- tion will experience bitter and lasting wounds.

Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and im- pose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic sup- porters of same-sex marriage should worry about the scope of the power that today’s majority claims.

Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.

Hard to deny that.

Justice Thomas warns about “the dangerous fiction of treating the Due Process Clause as a font of substantive rights. (p. 2).   The decision, “invites judges to do exactly what the majority has done here—“‘roa[m] at large in the constitu- tional field’ guided only by their personal views” as to the “ ‘fundamental rights’ ” protected by that document. (p. 2).

Thomas has an extended discussion of what “liberty” has always meant, going back to Magna Carta.

In enacting the Fifth Amendment’s Due Process Clause, the Framers similarly chose to employ the “life, liberty, or property” formulation, though they otherwise deviated substantially from the States’ use of Magna Carta’s lan- guage in the Clause. See Shattuck, The True Meaning of the Term “Liberty” in Those Clauses in the Federal and State Constitutions Which Protect “Life, Liberty, and Property,” 4 Harv. L. Rev. 365, 382 (1890). When read in light of the history of that formulation, it is hard to see how the “liberty” protected by the Clause could be inter- preted to include anything broader than freedom from physical restraint. That was the consistent usage of the time when “liberty” was paired with “life” and “property.” See id., at 375. And that usage avoids rendering superflu- ous those protections for “life” and “property.”

If the Fifth Amendment uses “liberty” in this narrow sense, then the Fourteenth Amendment likely does as well. See Hurtado v. California, 110 U. S. 516, 534–535 (1884). Indeed, this Court has previously commented, “The conclusion is . . . irresistible, that when the same phrase was employed in the Fourteenth Amendment [as was used in the Fifth Amendment], it was used in the same sense and with no greater extent.” Ibid.  (p. 6)

He makes this point, drawing on John Locke:

Even assuming that the “liberty” in those Clauses en- compasses something more than freedom from physical restraint, it would not include the types of rights claimed by the majority. In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular gov- ernmental entitlement. (p. 7)


Far from being incarcerated or physically re- strained, petitioners have been left alone to order their lives as they see fit.

Nor, under the broader definition, can they claim that the States have restricted their ability to go about their daily lives as they would be able to absent governmental restrictions. Petitioners do not ask this Court to order the States to stop restricting their ability to enter same-sex relationships, to engage in intimate behavior, to make vows to their partners in public ceremonies, to engage in religious wedding ceremonies, to hold themselves out as married, or to raise children. The States have imposed no such restrictions. Nor have the States prevented petition- ers from approximating a number of incidents of marriage through private legal means, such as wills, trusts, and powers of attorney.

Instead, the States have refused to grant them govern- mental entitlements. Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages—on state issued marriage licenses, death certif- icates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consor- tium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any un- derstanding of “liberty” that the Framers would have recognized.

Sorry about the extra hyphens… btw. But you are smart.

Thomas takes up a phrase in the majority opinion, “better informed understanding”, which I think is going to be as infamous as Douglas’ emanations and penumbras in Griswold v. CT.

In a concession to petitioners’ misconception of liberty, the majority characterizes petitioners’ suit as a quest to “find . . . liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the oppo- site sex.” Ante, at 2. But “liberty” is not lost, nor can it be found in the way petitioners seek. As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefits. And as a constitutional matter, it is likely even narrower than that, encompassing only freedom from physical restraint and imprisonment. The majority’s “better informed understanding of how constitutional imperatives define . . . liberty,” ante, at 19,—better informed, we must assume, than that of the people who ratified the Fourteenth Amendment—runs headlong into the reality that our Constitution is a “collection of ‘Thou shalt nots,’” Reid v. Covert, 354 U. S. 1, 9 (1957) (plurality opinion), not “Thou shalt provides.”

The majority has – like good gnostics – evolved a “better informed understanding” and “new insights”. Despite thousands of years of understanding marriage in a certain way, in every culture on Earth, the majority leans on something else.  (See also Roberts, p. 25)

Concerning the implications of the majority’s decision, Thomas points out consequences for religious liberty:

Numerous amici—even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” Brief for General Conference of Seventh-Day Adventists et al. as Amici Curiae 5. In our society, marriage is not simply a governmental institution; it is a religious institution as well. Id., at 7. 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.

The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 27. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so ful- filling and so central to their lives and faiths.” Ibid. Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice. (pp. 15-16)

That is the difference between “freedom of religion” and mere “freedom of worship”.  Again, as Alito said, we will be pressured only to “whisper” our views at home.  We will be vilified, even prosecuted, for expressing them in public.

Justice Scalia has a short opinion.  At the end, he doesn’t even both to say, “I dissent” (as he did yesterday to King v. Burwell, p. 21), much less “I respectfully dissent” (as other Justices usually do).  He wrote “to call attention to this Court’s threat to American democracy” (p. 1).

He is uninterested in what the law says about marriage.  He wants to know who “rules” now (p. 2).

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 Consti- tution and its Amendments neglect to mention. This practice of constitutional revision by an unelected commit- tee of nine, always accompanied (as it is today) by extrav- agant praise of liberty, robs the People of the most im- portant liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

I, for one, do not welcome my black-gowned overlords.

By the way, it is a pleasure to read Scalia, not just because of the occasional acerbic comment.  If you are making notes and following the arguments, you see that each paragraph links to last.   But I digress….

Scalia say that the majority has stripped the people of democratic process, however messy.

The Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-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. (p. 4)

And…speaking about learning new meanings, etc….

The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.” Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. (p. 5)

He makes a point about the make up of the Court: “Four of the nine are natives of New York City”. (p. 6)

Fireworks ensue on pp. 6-8:

But what really astounds is the hubris reflected in today’s judicial Putsch. [German: “sudden revolt to take over government, like the Nazi “Beer Hall Putsch” in 1923.] 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 2003.20 They have discovered in the Fourteenth Amend- ment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds— minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly— could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,21 cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.

The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate con- curring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.22 [Here is footnote 22 for your convenience… don’t miss this!: 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. – I take that as a “No” vote.] Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”23 (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. [Which, where I live, it’s pretty easy to do.] 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.) [C’mon, you libs… that’s funny.] Rights, we are told, can “rise . . . from a better informed understanding [infamy!] of how constitutional imperatives define a liberty that remains urgent in our own era.”24 (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.”25 (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. [Italics in original.]

Some of the phrases in the majority opinion are likely to become as famous as the “emanations” line.  And surely this “better informed understanding” and “new insights” and that B as in B S as in S has eclipsed Justice Stewart’s famous “I know it when I see it” line.

Near the end:

If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.


Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”26 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.

Thus, Scalia.

Chief Justice Roberts has the main, longer, dissenting opinion, which JJ. Scalia, Thomas and Alito joined.

More on that later.

About Fr. John Zuhlsdorf

Fr. Z is the guy who runs this blog. o{]:¬)
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  1. CradleRevert says:

    I love a bit of well-aimed snark, and Justice Scalia didn’t disappoint in one of his footnotes.

    “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.” – page 7 (note 22)

  2. acardnal says:

    The vote was 5-4. And because of one vote – a simple majority – society changes.

    I saw this on The Badger Catholic’s blog about what Justice Scalia said about Justice Kennedy’s opinion:
    Justice Scalia, at footnote 22, ripping into Justice Kennedy comparing his legal reasoning to a fortune cookie:

    “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.”

    Justice Kennedy wrote the below in a previous case and his comments about liberty and “defining one’s own concept of . . . life” were controversial then as his comments above on homosexual marriage are today. Just more fortune cookie reasoning:

    PLANNED PARENTHOOD VS. CASEY, 505 U.S. 833 (1992).
    Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Our cases recognize “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Our precedents “have respected the private realm of family life which the state cannot enter.” These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion by the State.

  3. frahobbit says:

    It would be the best thing for me to do, to memorize as many chunks of the dissenting opinions as I can get into my poor head. Many of the sections have a sheer beauty, and would do well in helping me to answer critics of my refusal to accept the majority opinion.

  4. Pingback: Reactions Legalizing So-Called Same-Sex Marriage

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