Americans face being 'labeled as bigots' over gay marriage ruling, justice warns

http://www.theguardian.com/us-news/2015/jun/26/gay-marriage-supreme-court-justices-dissent

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One of the US supreme court justices who found themselves on the opposite side of Friday’s historic endorsement of same-sex marriage has warned that the ruling will be used to “vilify Americans who are unwilling to assent to the new orthodoxy”, a group he said now faced being “labeled as bigots”.

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Justice Samuel Alito said the ruling could leave the country suffering from “bitter and lasting wounds” in a dissenting opinion that veered away from legal argument, and head-first into political and cultural commentary.

“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,” he wrote.

“By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas.”

The stark warning from Alito stood apart from the opinions of the three other dissenting judges, who mostly avoided discussing the merits of gay marriage itself, opting for more legalistic complaints about what they believe should have been the limits of judicial power.

In an unusual move, all four justices opposed to the ruling provided individual dissenting opinions. For the most part, their objections were rooted in the belief that the supreme court’s majority had subverted the democratic process, imposing their reasoning upon states that, through ballots, elections and legislation, wanted to uphold a different definition of marriage.

That position was explicated in most detail by John Roberts, the justice who infuriated conservatives on Thursday by issuing a judgment in support of Barack Obama’s signature healthcare reform. His position on the same-sex marriage decision was more in keeping with that of Republicans, who maintain that the vexed question of gay marriage should be determined by states.

“Many people will rejoice at this decision, and I begrudge none their celebration,” Roberts wrote. “But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening.”

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For Roberts, the issue was not whether the arguments for same-sex marriage were compelling – in fact, in his view, they had “undeniable appeal”. Rather, his dispute was with the role of the court itself, which he portrayed as having overstepped its authority in a highly undemocratic fashion.

“Those who founded our Constitution would not recognise the majority’s conception of the judicial role,” he wrote, adding that the ruling was a dangerous precedent. “If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can?” he asked.

Roberts even went so far as to suggest the undemocratic decision “cast a shadow” over the achievement of same-sex marriage campaigners. However heartened the proponents of same-sex marriage might be, Roberts said, “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”.

“And they lose this,” he added, “just when the winds of change were freshening at their backs.”

Like the other justices, Roberts largely skirted the debate over the wisdom of same-sex marriage itself, although his dissent did contain some references to the historically rooted tradition of marriage between a man and a woman.

The chief justice also said it was “striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage”. Roberts did not, however, venture what – if anything – he thought might be problematic about polyamorous marriages.

Antonin Scalia’s dissent was shorter and, characteristically, more punchy. He argued the court, comprising a bench of nine judges who were “strikingly unrepresentative” of the wider country, had effectively enacted a “judicial Putsch”.

“This is a naked judicial claim to legislative – indeed, super-legislative – power; a claim fundamentally at odds with our system of government,” Scalia wrote. “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

The dissent unveiled by Clarence Thomas came from a somewhat different angle, focusing on what he believed was the majority’s overly broad definition of the constitutional right to “liberty” – which, as part of the due process clause of the 14th amendment, was a central pillar of their argument.

However, Thomas argued this was stretching the notion of liberty. “As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefit,” he wrote. “And as a constitutional matter, it is likely even narrower than that, encompassing only freedom from physical restraint and imprisonment.”

The petitioners in the case, he said, may not be able to marry in their home state, but that, in his view, was not a serious infringement on the liberty.

“To the contrary, they have been able to cohabitate and raise their children in peace,” Thomas wrote, pointing out they could hold civil marriage ceremonies in states that recognise same-sex marriages, travel freely, and “make their homes where they please”.

“Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit,” he wrote.

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But it was Alito who asserted the most direct opposition to same-sex marriage itself. “For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate,” he wrote. “Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.”

Alito complained that the majority’s interpretation of marriage focused “almost entirely on the happiness of persons who choose to marry”. He said that interpretation, while shared by many people, was at odds with those states that “have not yet given up on the traditional understanding”.

His warning about the ruling being used to “vilify” and “marginalise” Americans opposed to gay marriage appeared toward the end of his opinion, almost as an aside. “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,” he wrote.

“Recalling 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.”