AP Photo/Jacquelyn Martin
All unhappy Supreme Court justices, as Tolstoy never said, have their own stories, and this was never more apparent than it was last week. To be sure, each of the four justices who issued dissenting opinions to Justice Anthony Kennedy's majority opinion affirming a Constitutional right to same-sex marriage made the same argument: There was no such right, they each declared, so the decision to establish one should be left to the voters or legislators of the states.
But each did so in his own disconsolate (or in Antonin Scalia's case, dyspeptic) fashion, and digressed in distinctive ways.
Not surprisingly, Chief Justice John Roberts issued the most politic dissent, acknowledging right at the start that "the policy arguments for extending marriage to same-sex couples may be compelling," and concluding with the goodwill send-off, "If you are among the many Americans-of whatever sexual orientation-who favor expanding same-sex marriage, by all means celebrate today's decision." But like his fellow dissenters (Scalia and Clarence Thomas signed on to his opinion), Roberts discerned no right to same-sex marriage in the Constitution's requirement for due process and equal treatment under the law. He also lamented the majority's overturning centuries of opposition to same-sex marriage. "The Court today not only overlooks our country's entire history and tradition but actively repudiates it, preferring to live only in the heady day of the here and now," he wrote. "But to blind yourself to history is both prideful and unwise. 'The past is never dead. It's not even past,'" he wrote, quoting William Faulkner.
Yes, but-the past to which Faulkner referred was the past of the South's virulent racist history, whose many legacies most Faulkner's characters try but tragically fail to escape. In a week when an act of racist terrorism caused many to repudiate (however belatedly) a symbol of that racist past, Roberts' affirmation of a link to the homophobic past-and the homophobic present-sounded uncharacteristically tone-deaf.
But Roberts' backward glance pales alongside Scalia's reflexive lurch into the 19th century. Most of the commentary on Scalia's opinion has focused, understandably, on his uncontainable rage at the march of modernity, but at the core of his opinion is the reductio ad absurdum of his "originalism"-his belief that the Constitution must be interpreted to cover only those circumstances that existed when the original document and each of its amendments were written. Thus the 14th Amendment's establishment of a fundamental right to due process and equal treatment under the law cannot apply to gays and lesbians seeking to get married today because the idea didn't occur to the amendment's authors at the time it was ratified (1868), or to the courts until recently. The right to same-sex marriage, he writes, was "overlooked by every person alive at the time of ratification, and almost everyone else in the time since." It didn't occur, he continues, to such great legal minds of the early 20th century as Holmes, Brandeis, and Frankfurter. And therefore, apparently, it shouldn't occur to their successors on the bench today. Justices should tend to the Constitution, Scalia believes, by keeping it dead, stuffed and on the shelf. Far from applying it to current issues, their proper calling should be taxidermy.
Increasingly, Scalia's opinions read like the rantings of an aging right-wing uncle forced to endure his otherwise liberal family's gatherings.
For that very reason, they're not without a certain disruptive charm, as if Rodney Dangerfield had suddenly popped up inside a judge's robe. Indeed, they're so withering towards other justices' opinions (Scalia termed Kennedy's style "pretentious" and his content "egoistic") that they probably deter other justices from signing on to them. Thomas joined Scalia's opinion in this case, as Scalia joined Thomas' rather bizarre one, but Roberts, charged at least implicitly with preserving some comity on the court, did not.
And Samuel Alito didn't sign on to any dissent save his own. Not even Roberts', which was clearly the main dissenting opinion, and which Scalia and Thomas both joined. We have no clue why he kept his name off of it, save what he wrote in his own opinion-which is far more disturbing than those of his three colleagues.
Like his conservative confreres, Alito writes that the due-process clause doesn't extend to same-sex marriage, and that if same-sex marriage must come, it must do so through state legislation. But this argument is made at greater length and in greater detail by both Roberts and Scalia, and Alito passes over it quickly.
He devotes the bulk of his opinion, rather, to a political defense of traditional marriage. He cites earlier Supreme Court opinions that made that defense. More precisely, he cites and quotes at length from his own dissent in the Windsor case several years ago, in which the Court struck down the Defense of Marriage Act. "For today's majority," he wrote then and quotes now, "it does not matter that the right to same-sex marriage lacks deep roots and even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental."
Champions of traditional marriage, Alito continues, have believed "for millennia [that] marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate." Some now see other valid purposes for marriage, possibly because, he continues, "nearly 40 percent of all children in this country are born to unmarried women. This development undoubtedly is both a cause and result of changes in our society's understanding of marriage."
Actually, as sociologists from William Julius Wilson to Andrew Cherlin have shown, it's chiefly the result of the decline of stable employment for working-class men. In the decades following World War II, working-class marriage rates soared as the number of decent-paying, unionized working-class jobs increased, and they have declined in the decades since as such jobs disappeared. Indeed, two-parent family life in the United States has dwindled not in the states that have affirmed the right of gays and lesbians to marry but in the states where working-class jobs pay the least and where religious fundamentalism, belief in traditional marriage, opposition to same-sex marriage, and all-around homophobia tend to be strongest. In descending order, the 10 states with the lowest rates of child-rearing households with two married parents are Tennessee (40 percent), Oklahoma (39 percent), South Carolina (39 percent), Georgia (39 percent), Nevada (39 percent), New Mexico (39 percent), Alabama (38 percent), Arkansas (37 percent), Louisiana (36 percent) and Mississippi (32 percent).
Alito, clearly, is no sociologist. What he is is the self-appointed tribune for the nation's traditionalists. Quite unlike Roberts, whose opinion acknowledges that the Court's ruling will be greeted with celebrations by many Americans, the only social consequence Alito foresees is the stigmatization (and worse) that may await religious believers. "The decision will also have other [in addition to constitutional] important consequences," he writes. "It will be used to vilify Americans who are unwilling to assent to the new orthodoxy…. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools."
He continues: "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."
This isn't legal argumentation. It's the projection of many religious traditionalists' own history of persecution of minorities onto those minorities, the claiming of victim status that victimizers frequently employ. One searches in vain for any glimmering of realization in Alito's opinion that "the harsh treatment of gays and lesbians" isn't just confined to "the past," as he asserts; that young gays and lesbians in particular still face hatred and ridicule that is partly legitimated by the prohibition of same-sex marriage. Alito's capacity for empathy, apparently, extends to people just like himself and then grinds to a halt.
Perhaps that's why Alito declined to sign on to Roberts' dissent, which began by acknowledging that the case for same-sex marriage "may be compelling"-just not constitutionally guaranteed. Nothing in Alito's opinion would lead one to conclude that he finds anything compelling about that case. Rather, he sees in the Court's decision a constitutional over-reach and, more seriously, the mocking of traditional belief (itself a mixture of old-time religion and homophobia, not that he would acknowledge that-and not that the two are mutually exclusive).
An affirmation of that traditional belief hangs over all four dissents in varying degrees, and over none more than Alito's. "One truth is clear," Alexander Pope wrote in the concluding line of his first epistle of his Essay on Man: "Whatever is, is right." Alito would change that to, "Whatever was."
