Setting The Critics Straight Over Same-Sex Marriage Court Ruling

Editorial pages around the nation have some remarkable writing this morning about the Supreme Court ruling that underscored the constitutional right for same-sex marriages.  One of the best was printed in The New York Times.

The humane grandeur of the majority’s opinion stands out all the more starkly in contrast to the bitter, mocking small-mindedness of the dissents, one each by Chief Justice John Roberts Jr., and Justices Clarence Thomas, Samuel Alito Jr. and Antonin Scalia.

Faced with a simple statement of human equality, the dissenters groped and scratched for a way to reject it.

The chief justice compared the ruling to some of the most notorious decisions in the court’s history, including Dred Scott v. Sandford, the 1857 ruling holding that black people could not be American citizens and that Congress could not outlaw slavery in the territories; and Lochner v. New York, a 1905 case that is widely rejected today as an example of justices imposing their own preferences in place of the law.

He invoked the traditional understanding of marriage, which he ascribed to, among others, Kalahari bushmen, the Carthaginians and the Aztecs. But Justice Kennedy had a ready reply: “The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.”

Justice Scalia mocked the ruling as a “judicial Putsch” and a threat to American democracy. “This is a naked judicial claim to legislative — indeed, super-legislative — power,” he wrote. “A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

But that rant is wholly wrong. In American democracy, the judicial branch is the great bulwark against a majority’s refusal to recognize a minority’s fundamental constitutional rights. As Justice Kennedy wrote, “An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.”