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Five unexpected arguments in Scalia's same-sex marriage dissent

In his same-sex marriage dissent, Antonin Scalia argues that hippies know the truth about sex and marriage and Anthony and Kennedy should write fortune cookies.
U.S. Supreme Court Associate Justice Antonin Scalia addresses the Legal Services Corporation's 40th anniversary conference luncheon Sep. 15, 2014 in Washington, DC. (Photo by Chip Somodevilla/Getty)
U.S. Supreme Court Associate Justice Antonin Scalia addresses the Legal Services Corporation's 40th anniversary conference luncheon Sep. 15, 2014 in Washington, DC. 

Justice Antonin Scalia believes that the Supreme Court’s ruling in Obergefell v. Hodges, which legalized same-sex marriage nationwide, is a “threat to American democracy.”

In a dissent brimming with vitriolic snark, the justice argues that by forcing all states to recognize same-sex marriage, the court has violated “a principle even more fundamental than no taxation without representation: no social transformation without representation.”

The crux of Scalia’s argument is that, contrary to the ruling of the majority, the equal protection clause of the 14th Amendment does not require the government to include same-sex couplings in its definition of marriage:

"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. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as 'due process of law' or 'equal protection of the laws'—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification."

Thus, Scalia argues that if the country wishes to legalize same-sex marriage, it must do so through democratically enacted legislation, or through the ratification of a new constitutional amendment, and not through five unelected justices substituting their “reasoned judgment” of the 14th amendment for the will of those who ratified it.

Scalia’s commitment to this brand of "textualism" isn’t too surprising. But in his eight-page dissent, he offered a few more unusual opinions, including one that may embolden some states and individuals to nullify today’s ruling:

1. Anthony Kennedy should write fortune cookies

Much of Scalia’s dissent reads less like a judicial opinion than a piece of withering literary criticism.

Scalia writes that Justice Anthony Kennedy’s majority opinion is written “in a style that is as pretentious as its content is egotistic,” overflowing with “mummeries,” “silly extravagances,” and “straining-to-be-memorable passages.”

In case those phrases weren’t enough for the reader to appreciate the depth of his contempt for Kennedy’s prose, Scalia provides this remarkable footnote:

"If even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began 'The constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,' I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of a fortune cookie."

And if you think that writing a full paragraph disparaging your fellow justice’s “extravagant” writing seems, well, “extravagant,” Scalia would say that dissenters have the right to be indulgent:

“It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.”

 2. Hippies know the truth about what marriage does your sex-life

In his majority opinion, Kennedy writes: “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”

To which Scalia responds:

"(Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie."

The Huffington Post took Scalia’s suggestion, and asked hippies on the White House lawn about whether marriage expands intimacy. Paige Carambio, who attended her first Grateful Dead concert at “the age of 11 or 12,” offered the following response:

"If his dissent is about him being bummed that monogamy is boring, then he is not doing something right," she said. "This says way more about himself. He and his wife might want to consider couples' counseling or spicing things up a little."

3. Californians are not "genuine westerners"

In lamenting the usurpation of the legislature by an unrepresentative group of justices, Scalia offered this assessment of the Supreme Court’s demographic diversity:

"Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count)."

Anthony Kennedy was born in Sacramento, California.

4. If you want to stay married, you better watch your mouth

Responding to Kennedy’s claim that marriage helps couples discover greater freedom of expression, Scalia writes:

"Expression, sure enough, a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say."

5. If people refuse to abide by the Court’s ruling, the Court is to blame

But the most significant opinion in Scalia’s dissent may be the one he concludes with. There, he reminds his fellow justices that their rulings only become law if the executive branches of the state and federal governments chose to enforce them. Scalia then warns that by issuing rulings like today’s, the Court invites the People to defy its will:

 “Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.”

By claiming that the majority’s decision takes the court a step closer to “being reminded of our impotence,” Scalia suggests that the ruling provides an understandable desire for state governments to defy the will of the federal judiciary.

That argument has a particular resonance on the issue of same-sex marriage. In January of this year, Chief Justice of the Alabama Supreme Court Roy Moore refused to recognize the legitimacy of a federal ruling that struck down his state’s same-sex marriage ban. Moore wrote: “As Chief Justice of the Alabama Supreme Court, I will continue to recognize the Alabama Constitution and the will of the people overwhelmingly expressed in the Sanctity of Marriage Amendment."

Scalia’s reflections on the sex lives of hippies and his colleague’s “pretentious” writing are juridically harmless. But his apology for those like Moore, who would rather undermine the rule of law than expand access to marriage, could be viewed as a wildly irresponsible.