Dear Dahlia, Mark, Marty, Kenji, and Judge Posner:
Judge Posner writes of the gay marriage case: “It is very difficult to distinguish the case from Loving v. Virginia, which in 1967 invalidated state laws forbidding miscegenation.” He gets to the heart of the similarity between the two when he notes that in neither case was there any harm done to anyone else from the forbidden marriages.
But there is one major respect in which Loving differs greatly from Obergefell v. Hodges: Loving was 9–0. Obergefell was 5–4.
In Loving, no one dissented. In Obergefell, the four dissenting justices wrote four separate dissenting opinions. The judicial opponents of gay marriage were not content to go gently into that good night.
First, there is Chief Justice John Roberts, who would want to correct what I just wrote by arguing that he is not an “opponent of gay marriage”: He simply wants the issue resolved by the people or their elected representatives in the states. In the Slate Amicus podcast you and I recorded on Friday, Dahlia, I noted that the chief seemed to go out of his way to be respectful of LGBT advocates, noting, for example, that they “make strong arguments rooted in social policy and considerations of fairness.” You (and others who were actually in the courtroom Friday) tell me that his spoken summary of his dissent sounded more hostile and dismissive than the written opinion.
In the end, the chief justice’s dissent fails to offer any meaningful response to the simple argument that governmental restrictions on freedom must be justified by a reason—some public harm averted. Roberts doesn’t really provide any list of harms averted. And as Posner points out, what is left when there is no real harm is the possibility of hostility to the rights of others, an impermissible basis for a governmental rule.
There is, of course, the appeal to “tradition.” But—much like the defenses of the Confederate battle flag we’ve heard this past week, “tradition” and “heritage” come to nothing unless you can show that there is a valuable tradition or heritage worth defending. Gay exclusion alone doesn’t count.
If the chief’s written dissent is at least somewhat respectful, the other dissents are markedly not. Reading Justice Samuel Alito’s dissent, I felt as if I had stumbled upon a Fox News war on Christmas special report. He appears to see himself as a rightward version of William J. Brennan, charged with protecting a beleaguered minority from oppression. Alito’s oppressed group is some combination of conservatives; white people; and religious adherents, particularly Christians. I just don’t see it, but he seems genuinely to believe it.
In an extraordinary passage, Alito writes that the court’s decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.” He further asserts that “[r]ecalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails the Nation will experience bitter and lasting wounds.” Here, I believe, he really jumps the rails: Does he really mean to equate whatever criticism opponents of gay rights may face in the future with the horrendous, violent persecution of gays and lesbians that is a blight on civilization? If so, as I wrote on Slate in another context a few years ago, he misses the first lesson from Sesame Street: “Which of these things is not like the others?”
Justice Antonin Scalia’s dissent seems at times to be less about his hostility toward gay marriage and more about his hostility toward Justice Anthony Kennedy. To be sure, many dissents are sharp in their criticisms of majority opinions. But this is different: Scalia dissents from the style of Kennedy’ s opinion. And he does so in ways that are deeply personal, as he writes that Kennedy’s “opinion is couched in a style that is as pretentious as its content is egotistic” and mocks the “profoundly incoherent” opinion’s “showy profundities” and “silly extravagances of thought and expression.” You would think the court is some writer’s boot camp and that it was Kennedy’s misfortune to be assigned to the section run by Professor Kingsfield in One-L.
What may be most notable about Scalia’s dissent is the possibility that he is revealing something about the court’s internal deliberations about this case. One of his sharpest barbs is aimed not directly at Kennedy but at the four other justices who joined his majority opinion. Scalia says that if “I ever joined an opinion for the Court that began” with the flowery sentence Kennedy wrote, “I would hide my head in a bag.” But he adds to that a very telling phrase, saying: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began” that way … (emphasis added). What work is being done by “even as the price to be paid for a fifth vote”? Is Scalia suggesting that Kennedy’s vote was still in play and that the court’s four more liberal justices had to let him write whatever he wished as the “price to be paid” for his fifth vote? I think that would be a slim reed upon which to rest such a conclusion. But there is substantial evidence that Kennedy was not ready to rule definitively in favor a gay marriage just two terms ago, a time when such a decision would have overturned the laws of 44 states.
As Justice John Paul Stevens once wrote, quoting Justice Felix Frankfurter, “Wise adjudication has its own time for ripening.” The thousands of marriages by couples of men and couples of women over the past two years had the moral force (to use a phrase of the late Charles L. Black) of “the normative power of the actual.” The way was cleared for a complete victory, and that is what Obergefell delivered.