Gay marriage: It's a 'judicial Putsch' warns dissenting Scalia

By Anthony Zurcher For BBC News

26 June 2015


Four justices wrote dissents from the Supreme Court's decision legalising same-sex marriage throughout the US, but the ones by Justice Antonin Scalia and Chief Justice John Roberts were stylistic counterpoints. Mr Scalia flashed anger, railing against an elitist majority on the Supreme Court who were imposing their values on "320 million Americans coast-to-coast". "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," he writes.

He called the decision a "judicial Putsch" and "a threat to democracy", in which the majority discovered a right to marriage that all the US legal minds before them had overlooked. By broadening its interpretation of the Fourteenth Amendment equal protection of the law guarantee to include a universal right of same-sex marriage, he argued, the Court has given itself unlimited power. "It stands for nothing whatever, except those freedoms and entitlements this Court really likes," he writes.
Mr Roberts's dissent was more restrained, akin to a resigned shake of the head. He cloaked his opinion in warm words for the gay rights activists he knew would cheer the court's action. "Many people will rejoice at this decision, and I begrudge none their celebration," he writes. "But for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening." He warns, however, that there is a dark side to achieving their objective by judicial fiat.

"However heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause," he writes. It is the role of legislatures to determine social policy, he concluded, not judges.

Outside the court chambers, conservative commentators echoed these feelings of both anger and foreboding in their response to the decision. The chief justice's opinion "blows the majority's opinion out of the water", say the editors of the Federalist. "The majority opinion, as one might expect given the scant evidence that the plain text of the Constitution explicitly guarantees a right to gay marriage, is a total mess," they write. "It's tough to make a solid legal argument when you start with a conclusion - X is a good idea, therefore X is constitutional; Y is a bad idea, therefore Y is unconstitutional - and then reason backwards."

The Heritage Foundation's Ryan T Anderson tweets that the court's decision is a "significant setback for all Americans who believe in the Constitution, the rule of law, democratic self-government". The National Review's David French leans more toward Mr Scalia's logic, as he contends that by making the case for marriage equality in terms of dignity and personal fulfilment, the court endorses a "secular theology of self-actualisation" that is incompatible with Christian faith. "This is the era of sexual liberty - the marriage of hedonism to meaning - and the establishment of a new civic religion," he writes. "The black-robed priesthood has spoken. Will the church bow before their new masters?" "Gay marriage isn't a game or a mere wedge issue," tweets Breitbart's John Nolte. "It's the camel nose in the tent in the left's ultimate goal of destroying the church."

Much of the media and corporate world hailed court's decision on Friday. Websites like the Huffington Post, Buzzfeed and Mediate added rainbow colours to their logos, as did companies like American Airlines and Chipotle. Many conservatives are vowing to push back against the tide, however. According to RedState's Niel Stevens, conservatives need to take action. "It's time to defy the court on this," he writes. "It's time to fight back. Nonviolent civil disobedience is the only option we have been left under this terrible ruling."

[It does make me laugh this sort of thing. If the anti-gay marriage debate had been passed into law and the pro-gay groups advocated national civil disobedience there would be hell to pay in the Right Wing press. If the pro-gay groups talked about the triumph of tyranny over democracy they would be called out as massively over reacting and told that they should obey the law the same as everyone else. But because they lost the ruling the anti-gay groups feel entitled to say that the law no longer serves the people and that they are being dictated to in their own country. It seems that, if you are on their side of the fence that you can, quite legitimately, pick and choose which laws you will abide by and which you won’t. It seems odd, from this side of the pond, that there are those who can honestly think that the legal profession in the most religious country in the developed western world is dedicated to the ultimate destruction of the Church. Really? Is this how the End Times start? Really? Is the Apocalypse now appreciably closer? Really? Just because people who happen to choose partners with the same sexual organs rather than different ones are now allowed to, gulp, get married? Really? My God… It’s the End of the World!]