Dissecting the Dissenters:More Takeaways from Obergefell v. Hodges

Last Tuesday, I offered some takeaways from the majority opinion in Obergefell v. Hodges. I meant to follow up on Friday, but I ended up taking time to enjoy the holiday weekend.

However, because Obergefell is such an important case, I couldn’t leave out some thoughts on the dissenting Justices. It seems that the dissenters – Justices Roberts, Scalia, Thomas, and Alito – have caused some controversy with their thoughts.  Even some proponents of the decision believe that they have stronger legal analysis than Kennedy’s majority opinion.

Today I’ve summarized and commented on each the Justice’s thoughts.

Chief Justice Roberts

The Chief Justice’s argument focuses on whether “defining marriage” is an issue for the Court to decide. At its core, he states, marriage has always been defined between one man and one woman. Further, that essential definition of marriage hasn’t changed, despite how marriage has evolved over the years and even when the Court has stepped in (e.g., Loving v. Virginia).

Roberts seems to be okay with states redefining marriage, as some have already done through the legislature. But he argues that it’s not the Court’s place to expand the definition. He even goes as far to ask the question “Just who do we think we are?”  (pg 42).

Robert’s theory that “for millennia” marriage has always been defined as one man and one woman simply isn’t true. The majority points out that women were once treated as property in marriages. In addition, some 85 percent of the societies studied by anthropologists have practiced polygamy as the preferred marital form for the privileged. His premise is wrong. And trying to distinguish between interracial bans and the bans on same-sex marriages seems disingenuous.

Roberts also brings up that the majority doesn’t use the “usual framework for deciding equal protection cases” (pg 23).   He builds of his original claim that if the majority had engaged in that analysis that the state has a “legitimate state” in preserving “the traditional institution of marriage.”

I agree that the majority does use traditional equal protection or substantive due process analysis.  But Kennedy does base his decision on the fundamental right to marry, which any law abridging that right would have to be necessary to serve a compelling government interest. Kennedy shows why the reasons given by the respondents don’t serve any interest, let alone a compelling one.

Justice Scalia

Scalia’s dissent is both interesting and horrifying to read.  You likely already know of Scalia’s reputation for being outspoken. But this dissent seems over the top, even for him. He mentions the majority of the Court being “the Ruler of 320 million Americans” (pg 70). He takes jabs at the majority’s “straining-to-be-memorable passages” (pg 72).  And the now infamous footnote 22, in which he claims he would hide his head in a bag if he had joined the majority, reflects the sarcasm, condescension, and disdain that oozes out of his dissent.

He, like Roberts, argues that this issue should be left up to the states and the political process. But his points are completely lost in his clear hatred of “the stuff” in the majority’s opinion. Again, it seems a little much, even for him.

Justice Thomas

Justice Thomas takes a different approach from Roberts and Scalia by focusing on the concepts liberty and dignity.   He gives a history of the Fifth and Fourteen amendments, and references other commenters on liberty like John Locke.

Even if his points were solid, which I don’t think they are, his unfocused discussion make his arguments hard to internalize. He doesn’t feel that same-sex couples have had their liberty restrained. After all, “they have been able to cohabitate and raise their children in peace” (pg 86). He adds, “Far from being incarcerated or physically restrained petitioners have been left alone to order their lives as they see fit.”

Thomas seems to break from reality in his opinion. Not only have same-sex couples not been able to live life as they see fit (e.g., many would love to marry but couldn’t), but states have also imposed restrictions on being able to adopt children and penalized couples financial for not being married.  I’m not buying this argument. I’m not sure how he is either.

Justice Alito

Like his colleagues, Alito argues the decision should be left to the Legislature and not the Court. He takes a strict constructionist view with statements like “The Constitution says nothing about a right to same-sex marriage.”  He adds, “marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate (pg 99).   Overall, he just seems afraid that allowing same-sex couples to marry will somehow upend and “contribute to marriage’s further decay” (pg 101).  For reasons I’ve already stated, these arguments seem separated from the reality of marriage as “an institution” and the effect of same-sex unions on society as a whole.

In the end, the Justices are people, with different sets of values, understanding, and opinions. And while it’s interesting to read the dissents, I’m glad their stances didn’t win out. Plus, the fight for equal GLBTQ rights is far from over, so its serves us well to analyze these dissenting arguments to figure out how to make our cases stronger in the future. 

If you’d like some more analysis, check out one some of my favorites: constitutional scholar Ari Ezra Waldman and the Oral Argument Podcast episode 65.