Brown v. Board of Education, the landmark Supreme Court ruling against school segregation, was decided in a unanimous vote, 9-0. The court understood that in decisions that mandate significant societal and cultural change, and that will garner significant opposition, the fact of unanimity is in itself a kind of final argument.
In Loving v. Virginia, in 1967, the high court struck down prohibitions on mixed-race marriages. That too was decided unanimously.
Unanimous decisions tend to quell dissent; they confer an air of inarguable legitimacy, even inevitability. Whatever your own views, you as a citizen must acknowledge that nine lawyers, presumably skilled interpreters of the Constitution who hold different judicial and political philosophies, were able to agree on the charged issue at hand. Unanimous decisions rob opponents of arguments.
Landmark decisions based on narrow splits reflect a continuing breach.
Not fully acknowledged in the past days of celebration on one side, and profound reservation on the other, is that the court in Obergefell v. Hodges was split 5-4 on same-sex marriage, and that the dissenting opinions were truly remarkable. They were fiery and in some cases colorful, but they also showed a court divided on the essentials of the Constitution. Most strikingly, some of them included ominous warnings.
Chief Justice John Roberts scored what he sees as the court’s grandiosity and overreach.
The petitioners in the case had “strong arguments rooted in social policy and considerations of fairness” that same-sex couples should be allowed to “affirm their love and commitment” through marriage. In the past six years voters or legislators in 11 states and the District of Columbia had revised their laws to allow marriage between two people of the same sex. The highest courts in five states “decreed the same result.” Supporters of same-sex marriage have achieved “considerable success persuading their fellow citizens—through the democratic process—to adopt their view.”
But the high court has stopped that “vibrant debate.” The majority has “enacted their own vision of marriage.” In effect they are “stealing this issue from the people,” which will make “a dramatic social change that much more difficult to accept.”
“The Constitution itself says nothing about marriage,” the chief justice observed, so that states are “free to expand marriage to include same-sex couples, or to retain the historic definition.” The majority has taken an “extraordinary step” in ordering every state to license and recognize same-sex marriage. The court’s decision is “an act of will, not legal judgment.” It “omits even a pretense of humility,” instead moving on a desire “to remake society” according to what it calls “new insights.”
“The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to,” the chief justice argues. “The Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?”
That grandiosity endangers the Court’s very legitimacy, which rests on public respect that “flows from the perception—and the reality—that we exercise humility and restraint in deciding cases according to the Constitution and the law.”
The Obergefell Court is “anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change.” They act as if “it is the courts, not the people, who are responsible for making ‘new dimensions of freedom . . . apparent to new generations.’ . . . Those who founded our country would not recognize the majority’s conception of the judicial role.”
And the decision raises serious questions about religious liberty. Every state that has adopted same-sex marriage democratically has, “out of respect for sincere religious conviction,” included accommodations for religious practice. There are none in this decision. The majority “graciously suggests” that religious believers may continue to “advocate” and “teach” their views of marriage. “The First Amendment guarantees, however, the freedom to ‘exercise’ religion. Ominously, that is not a word the majority uses.”
Finally, and “most discouraging,” the majority felt “compelled to sully those on the other side of the debate.” “Americans who did nothing more than follow the understanding of marriage that has existed for our entire history”—including the tens of millions who voted to reaffirm their state’s enduring definition of marriage—are depicted as having disparaged and inflicted “ ‘dignitary wounds’ upon their gay and lesbian neighbors. These apparent assaults on the character of fair-minded people will have an effect, in society and in court.”
Justice Antonin Scalia put his criticism in populist terms. His message seemed a warning to the court. “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers of the Supreme Court. . . . A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
Those lawyers are “select, patrician, highly unrepresentative.” All studied law at Harvard or Yale, four are natives of New York City, eight grew up on the East or West coast, “only one hails from the vast expanse in-between.” Not a single Southwesterner, nor a genuine Westerner, not even a Protestant. The “unrepresentative character” of the court would mean nothing if its members were “functioning as judges.” But in this case they are not. This “judicial putsch,” Justice Scalia writes, is the product of “hubris”—“sometimes defined as o’erweening pride; and pride, we know, goeth before a fall.”
Justice Clarence Thomas composed a ringing aria on the subject of dignity. The majority, he says, believe they are advancing the “dignity” of same-sex couples in their decision, but they don’t understand what dignity is or where it comes from. Dignity is “innate”; the government is “incapable of bestowing” it. “Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved.”
If the government cannot bestow dignity, “it cannot take it away.”
Justice Samuel Alito warned the decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.” The majority compared the traditional definition of marriage to laws that denied equal treatment for African-Americans and women: “The implication of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”
Thus “by imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. 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.”
You can hardly get more ominous, more full of warning, than these opinions, which should be read in full.