Professional Documents
Culture Documents
Scalia Dissent
Scalia Dissent
____(2015)
SCALIA,J.,dissenting
Nos.14556,14-562,14-571and14574
_________________
JAMESOBERGEFELL,ETAL
.,PETITIONERS
14556
v.
RICHARDHODGES,DIRECTOR,OHIO
DEPARTMENTOFHEALTH,ETAL
.;
14562
.,PETITIONERS
VALERIATANCO,ETAL
v.
BILLHASLAM,GOVERNOROF
.;
TENNESSEE,ETAL
.,PETITIONERS
APRILDEBOER,ETAL
14571
v.
RICKSNYDER,GOVERNOROFMICHIGAN,
ETAL
.;AND
GREGORYBOURKE,ETAL
.,PETITIONERS
14574
v.
STEVEBESHEAR,GOVERNOROF
KENTUCKY
ONWRITSOFCERTIORARITOTHEUNITEDSTATESCOURTOF
APPEALSFORTHESIXTHCIRCUIT
[June26,2015]
OBERGEFELLv.HODGES
SCALIA,J.,dissenting
knowledgethatanelectorallosscanbenegatedbyalater
electoral win. That is exactly how our system of govern
1BriefforRespondentsinNo.14571,p.14.
Citeas: 576U.S.____(2015)
SCALIA,J.,dissenting
mentissupposedtowork.2
The Constitution places some constraints on self-rule
constraints adopted by the People themselves when they
ratifiedtheConstitutionanditsAmendments.Forbidden
arelawsimpairingtheObligationofContracts,3denying
Full Faith and Credit to the public Acts of other
States,4prohibitingthefreeexerciseofreligion,5abridging
the freedom of speech,6 infringing the right to keep and
bear arms,7 authorizing unreasonable searches and seizures,8 and so forth. Aside from these limitations, those
powers reserved to the States respectively, or to the
people9 can be exercised as the States or the People desire. ThesecasesaskustodecidewhethertheFourteenth
AmendmentcontainsalimitationthatrequirestheStates
to license and recognize marriages between two people of
thesamesex. Doesitremovethat issuefromthepolitical
process?
Ofcoursenot.ItwouldbesurprisingtofindaprescriptionregardingmarriageintheFederalConstitutionsince,
as the author of todays opinion reminded us only two
years ago (in an opinion joined by the same Justices who
joinhimtoday):
[R]egulationofdomesticrelationsisanareathathas
longbeenregardedasavirtuallyexclusiveprovinceof
theStates.10
opinion)(slipop.,at1517).
3U.S.Const.,Art.I,10.
4Art.IV,1.
5Amdt.1.
6Ibid.
7Amdt.2.
8Amdt.4.
9Amdt.10.
10United Statesv.Windsor,570U.S.___,___(2013)(slipop.,at16)
(internalquotationmarksandcitationomitted).
OBERGEFELLv.HODGES
SCALIA,J.,dissenting
11Id.,at___(slipop.,at17).
12SeeTown of Greecev.Galloway,572U.S.___,______(2014)(slip
op.,at78).
13Ante,at10.
Citeas: 576U.S.____(2015)
SCALIA,J.,dissenting
dimensions....14 Onewouldthinkthatsentencewould
continue:...andthereforetheyprovidedforameansby
which the People could amend the Constitution, or perhaps...andthereforetheyleftthecreationofadditional
liberties, such as the freedom to marry someone of the
samesex,tothePeople,throughthenever-endingprocess
of legislation. But no. What logically follows, in the
majoritys judge-empowering estimation, is: and so they
entrusted to future generations a charter protecting the
right of all persons toenjoy liberty as we learn its meaning.15Thewe,needlesstosay,isthenineofus.History
14Ante,at11.
15Ibid.
16Ante,at1011.
17Ante,at1218.
OBERGEFELLv.HODGES
SCALIA,J.,dissenting
ofAmerica. Take,forexample,thisCourt,whichconsists
of only nine men and women, all of them successful lawyers18 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
Americans19), or even a Protestant of any denomination.
The strikingly unrepresentative character of the body
voting on todays social upheaval would be irrelevant if
they were functioning as judges, answering the legal
questionwhethertheAmericanpeoplehadeverratifieda
constitutional provision that was understood to proscribe
the traditional definition of marriage. But of course the
Justices in todays majority are not voting on that basis;
they say they are not. Andtoallowthepolicyquestionof
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
withoutrepresentation.
II
But what really astounds is the hubris reflected in
todays judicial Putsch. The five Justices who compose
todays majority are entirely comfortable concluding that
thequestionspresentedinthesecasesissuggestedbythefactthatthe
American Bar Association deemed it in accord with the wishes of its
members to file a brief in support of the petitioners. See Brief for
American Bar Association as Amicus Curiae in Nos. 14571 and 14
574,pp.15.
19See Pew Research Center, Americas Changing Religious Land
scape4(May12,2015).
Citeas: 576U.S.____(2015)
SCALIA,J.,dissenting
OBERGEFELLv.HODGES
SCALIA,J.,dissenting
Citeas: 576U.S.____(2015)
SCALIA,J.,dissenting
26TheFederalistNo.78,pp.522,523(J.Cookeed.1961)(A.Hamilton).