We won’t spend the time going over the dissenting opinions that we spent on the majority opinion. The dissenting opinions make for interesting reading if you want to get into some of the legal rebuttal. But, they aren’t the law. I will give an overview of the dissenting opinions If you see something interesting in the summary, you can download the decision in PDF format by following the link at the end of the post and read the part that interests you. The “sound bite” wars that have popped up over this decision have been unflattering for both sides. If you want to be part of the dialog, take the time to read the decision, including the dissents, and understand both sides.
Chief Justice Roberts. At 29 pages, Justice Roberts’ dissenting opinion is as long as the majority opinion. Personally, I found it easier to follow the organization in C.J. Roberts’ dissenting opinion. Your mileage my vary. After an introduction similar to Justice Kennedy’s, he begins his argument with the “keystone” Due Process argument used by the majority. The says that the Solicitor General of the United States, though supporting the Petitioners, “disowned that position [the Due Process Clause argument] before this Court. The majority, nevertheless resolves these cases for petitioners based almost entirely on the Due Process Clause.” He then cites examples of how the approach used by the majority in Obergefell had been used by the Court in the past. If you read the dissent and are familiar with American legal history, you will recognize some of the cases and, I think, agree that the decisions he cites were later recognized as flawed or just wrong. He also responds to the “definition of marriage” line of cases like Loving and the “privacy” line of cases, like Griswold and explains why he does not believe they apply in Obergefell.
Justice Roberts raises two points that I plan to talk about in future posts. The first is that the majority’s reasoning can be applied with equal force to polygamous marriage. I had also reached that conclusion before I finished reading the majority decision. The second is that, by resolving this issue through the Court, they have short circuited the process that could have worked out accommodations for religious practice.
Justice Scalia. Justice Scalia begins his dissent with “I join the Chief Justice’s opinion in full, I write separately to call attention to this Court’s threat to American democracy.” He makes a compelling argument and calls the decision a coup. You may not agree with him, but you don’t need to guess what he is thinking.
Justice Thomas. Justice Thomas begins his dissent with “[t]he Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation is built.” There were two points that I thought Justice Thomas made well. The first is that the focus of the Due Process Clause cases has been to prevent the States from taking rights without due process of law and not to force the States to grant rights as the clause is being applied in Obergefell. The second is that “the majority’s decision threatens the religious liberty our Nation has long sought to protect.”
Justice Alito, Justice Alito begins his dissent with “[u]ntil the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage. The question is these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people.”
The theme of all the dissenting opinions is that the States have been given the responsibility to define marriage and these cases do not present a constitutional issue. Again, I encourage you to read them.
As I have said earlier, there are a few more topics I would like to cover, like the application of the case to polygamous marriage and whether their is a need to accommodate sincerely held religious beliefs. A lot of “sound bite” thinking has surfaced on both sides of the issue. Folks are trying to ward of using Obergefell to support polygamous marriage. They would like to see the decision as an “adjustment” in our view of marriage and not a seismic shift. As you will see, I fall into the seismic shift camp, Also, it seems clear to me that some of my Christian friends don’t completely understand how this case does, or may, affect their religious freedom. There has been talk about “civil disobedience.” Please, don’t start burning anything just yet. If we will stop shouting and listen, there may be a chance to be part of the discussion.
If you have been reading along and have questions or comments. Please leave them. I would also like to know if you have ideas for other topics to cover.
To get to the page of Obergefell resources, including other posts and a link to the opinion, please follow this link.