The following excerpts from the 4 out of 5 Supreme Court Judges that dissented.
Why Four Justices Were Against the Supreme Court’s Huge Gay-Marriage Decision – NationalJournal.com
CHIEF JUSTICE JOHN ROBERTS
While Roberts said he did not “begrudge” any of the celebrations that would follow the Court ruling, he had serious concerns that the Court had extended its role from constitutional enforcer to activist.
JUSTICE ANTONIN SCALIA
Scalia wrote that while he has no personal opinions on whether the law should allow same-sex marriage, he feels very strongly that it is not the place of the Supreme Court to decide.
According to Scalia, the five justices in the majority are using the 14th Amendment in a way that was never intended by its writers. “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so,” he wrote.
“They [the majority] have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.”
Scalia called out the majority for acting like activists, not judges. (He was similarly critical in Thursday’s ruling on health care.) “States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment,’” he wrote.
JUSTICE CLARENCE THOMAS
Further, the long-standing legal understanding of liberty does not encompass the rights the majority opinion says it does, Thomas argues. Liberty has “long been understood as individual freedom from government action, not as a right to a particular governmental entitlement.”
Thomas additionally warns that the Court’s “inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty.” Further, he argues that the decision will threaten religious liberty by creating an unavoidable collision between the interests of same-sex couples and some religious organizations.
“In our society, marriage is not simply a governmental institution; it is a religious institution as well,” Thomas wrote. “Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.”
JUSTICE SAMUEL ALITO
Alito: “For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.”
Like his conservative colleagues, Alito worries that the Court is overstepping its power, making sweeping legal changes for every state in the country. He concludes on a warning.
“Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims,” Alito writes. “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. “