I feel compelled to respond to some of the incredibly obtuse
nonsense contained in the dissents of the four members of the SCOTUS after the
decision affirming the right to marriage equality was announced this morning. These opinions – from Chief Justice Roberts,
Scalia, Thomas and Alito – all argue from a particular perspective; the “tradition”
of marriage in society. But because
marriage – at least in modern western societies – is inextricably bound to
religion. SCOTUS opinions that are
grounded in religious traditions and notions of marriage almost inevitably
leads to a muddled and incoherent mess.
From Roberts, this particularly puzzling blast; “[F]or the
good of children and society, sexual relations that can lead to procreation should
occur only between a man and a woman committed to a lasting bond.” Huh? John, who else would procreation occur between?
Can a man and woman not particularly
interested in procreating have a traditional marriage? How about a man and woman who can’t
procreate?
But more than these obvious arguments is this essential
element; to the extent that marriage as it is currently codified into law
creates an advantage for the participants, the equal protection clause requires
that the same advantage be available to all Americans. And not to just all Americans seeking to
procreate or pursue a lifetime relationship with someone of the opposite sex, religious
tradition notwithstanding. It begs the
very question of why the state have “marriage laws” to begin with.
But it isn’t Roberts who leads the SCOTUS train off the
rails; Scalia once again puts his full, meager intelligence on view with his
snarling and sneering opinion. His
argument seems to rest on the idea that the 14th amendment is
somehow violated by this simple notion.
For reference, here is what seems to be the relevant section:
No state shall make or
enforce any law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.
As marriage laws dictate these privileges, this seems pretty
clear to me. Scalia contends that the 5
affirming justices have “discovered a fundamental right overlooked by every
person alive at the time of ratification.”
But this is disingenuous in the extreme if it is referring to the
specifics of same sex marriage. It is
true this isn’t addressed; neither is intercontinental airline traffic or laws
governing the internet. Somehow we find
meaning there in spite of these omissions.
So this becomes nothing more than a hissy-fit because Antonin as a
Catholic is opposed to the idea – perhaps even repulsed by the idea. But of course his religiously based
objections are irrelevant and he should know it.
Alito also smears the constitution with a generous extra heaping
helping of religiosity that isn’t and shouldn’t be there. His opinion states; “Today’s decision usurps
the constitutional right of the people to decide whether to keep or alter the
traditional understanding of marriage.”
Sam seems to have confused the constitution with the bible because as
far as I know this question isn’t addressed.
He goes on to warn ominously, “By imposing its own views on the entire
country, the majority facilitates the marginalization of the many Americans who
have traditional ideas”, a somewhat overwrought and sweeping statement and one
that could easily be applied by a 19th century segregationist. “Traditional ideas” are just that, and should
not have the weight of law.
But Clarence Thomas wins the prize for the most tortured
logic on display with a barely coherent rant about how slaves did not lose
their dignity because the government allowed them to be slaves, as if one’s
dignity is the sole criterion by which to judge. He opines that, “[R]eceiving governmental recognition
and benefits has nothing to do with any understanding of ‘liberty’” a statement
completely devoid of logic, as not being allowed a benefit conferred on one’s
fellow citizens certainly seems to qualify as a diminution of liberty to me.
It seems clear that once again the conservative SCOTUS
justices have allowed their religious beliefs to completely infiltrate their
understanding of constitutional law and – moreover seem content to rest
fundamental decision consciously on that foundation, something that truly would
be anathema to the founders. I pains
people to come to the realization that, while basic Christian beliefs are
incorporated into laws of this country – thou shalt not kill, steal, etc. – they
do not form the font from which all that is right flows. As the country’s demographics continue to
evolve the recognition of this simple fact by our legislators and politicians
will become ever more important. As will
reconstituting the current SCOTUS.
