Scalia's argument isn't that marriage equality is an issue for the states. It that it's an issue for the legislature; that is, that the people should decide on it, rather than an interpretation of our secular scripture.
It's helpful to remember that the balance of powers were carefully designed, with an overarching purpose of not centralizing power into a monarchy or aristocracy. We are by design not a nation governed by a panel of philosopher-kings.
Because the Supreme Court has lifetime tenure --- a design feature intended to isolate the justices from politics, not embed them in it --- there's a lot of tension involved in their powers. Unlike politicians, they can't easily be removed if there's a popular outcry against their decisions. They're the guardians of the Constitution. But the Constitution is first and foremost a document of procedural safeguards: it is most coherently and powerfully understood as a mechanism to ensure that all citizens have open channels to the decision-making of their own governance. The procedures of US government are meant to be zealously protected, but the substance is supposed to be left to the people.
So a lot of the dissent in today's result is best read as, "regardless of what we think of marriage equality, who are we to override the decisions of the people?" And further militating against today's substantive intervention by five pro-equality justices is the fact that marriage equality isn't really a process right. Whether or not your marriage is recognized has actually not much bearing on whether you're capable of making your voice heard.
Of course, there are even more powerful arguments in favor of marriage equality. For one thing, the black letter language of the Constitution, right smack in the beginning of it prior to any amendments, requires all the states to honor each other's judicial proceedings, public acts, and records. To allow Mississippi to reject a Massachusetts same-sex marriage is to contravene the process set up in the Constitution directly. That can happen, but probably not when the conflict is animated entirely by discrimination against a class of people.
All this is just to say: don't be too quick to discard the intellectual argument against Supreme Court-enforced marriage equality. There will be times in your life where the same arguments are going to make a lot more sense, applied to other issues.
You make excellent points and make them well. I would add: Let's not take the arguments entirely at face value. People facing defeat in federal court have long tried to hide behind states' rights (used for segregation and abortion, for example) and that any court decision that overturns legislation is democratically illigitmate.
> "regardless of what we think of marriage equality, who are we to override the decisions of the people?"
The courts were created, intentionally, as a check on the legislature and executive. Also, the will of the people as expressed in the Constitution, that all citizens are due equal protection and due process, is as democratically legitimate (and overrides) their will as expressed through the legislatures.
At the same time, as you say, there are legitimate concerns about the limits of judicial power, and they should be examined and advocated for, even if the advocacy is, as usual, for political convenience and not for principle or public good.
>Of course, there are even more powerful arguments in favor of marriage equality. For one thing, the black letter language of the Constitution, right smack in the beginning of it prior to any amendments, requires all the states to honor each other's judicial proceedings, public acts, and records.
It's not clear cut as you imply. If it were, Concealed Carry Licenses for handguns would have reciprocity everywhere.
Another really helpful thing to remember about the Constitution is that it's incoherent. The framers were not logicians and the Constitution was not an exercise in formal consistency. There are provisions and even rights that conflict directly with each other.
And that's by design, too. The idea is to set up an enduring process that will generally converge, like a good distributed commit algorithm, on the citizenry having access to the channels of power. When that system arrives at a circumstance that implicates a conflicting set of Constitutional mandates, the design of the system is "fuck it, let smart judges chosen (at some remove) by the people resolve that."
The justices are supposed to be referees. They aren't supposed to change the outcome of the game. But anyone who's ever watched more than a couple baseball games knows that it's tough to keep refereeing and outcomes separate.
It happens to make sense to me that (a) allowing MS to deny full faith and credit to MA marriages is overt support for discrimination against LGBT people: it's using an implied principle (respect for people's belief in religious sanctity of marriage) to upturn an explicit principle, and (b) allowing MS to effectively monkeywrench the decisions of other states, so that you're effectively un-married if your job moves you from IA to MS, is undemocratic. So I think the refs made a good call this time. But reasonable people can see it differently.
As a libertarian, the less government is involved in marriage, the better. So yay!
But Scalia's argument is the stronger here. And there will be a time when this kind of reasoning is used in a way that will not be good.
Historical sidebar: back in the 90s, there was a rash of state governments passing "defense of marriage" laws. There was one at the federal level. At the time, the best argument I heard against such laws was that they were idiotic: there's no way the federal court system would start mucking around with marriage.
As I said, today's decision is a good thing. But I am very disturbed that many very intelligent people thought this was none of the court's business. For a fundamental issue like this, it's not a good thing that nobody knows even whether it's relevant to the court or not.
Scalia's argument is not new and goes back to before the civil rights era. It was wrong-headed then and it's wrong-headed now.
> there's no way the federal court system would start mucking around with marriage.
And maybe if fed and state governments hadn't felt the need to placate the angry mobs by passing super discriminatory laws, the court never would have had the demonstrable harm necessary to step in and make a ruling.
> For a fundamental issue like this, it's not a good thing that nobody knows even whether it's relevant to the court or not.
That's kind of the hitch though, isn't it? We wouldn't even need the courts if there weren't always fairly smart people (smart enough to get elected, at least) who disagree that minorities should have Rights.
Court decisions to confer Rights are tricky because the procedural question is exactly the substantive question -- if Gay people have a Right to marry, then the court has no choice but to step in. And if they don't, then the court has no choice but to stay hand off. And whether they have that Right depends, basically, on your opinion. As Kennedy pointed out, the due process and equal protection clauses were written in an intentionally non-explicit way.
Edit: For example, it would be absolutely insane today for us to imagine the equal protection clause not providing a basis for banning discrimination based on race. Obviously, either our constitution forbids that practice under the Fourteenth Amendment or else our Constitution is seriously, seriously flawed. Right? Right. Now, go read the Plessy v. Ferguson decision.
There is a clear distinction between granting rights and denying rights. The Supreme Court should not be actively denying rights to people, unless it is clearly called out in the Constitution or state law. This is not one of those examples.
And thus far this court has been fairly consistent in granting rights broadly. This ruling stands in that tradition, but this time in a direction ideologically opposed to the right.
Yes! I really, really liked Ely's _Democracy and Distrust_. I don't know how current its ideas are (it's from 1980), but someone recommended it on some legal thread somewhere and I found it both super easy to read and also very illuminating.
The Supreme Court can be overridden by a Constitutional amendment, the process of which empowers state legislatures--either to approve an amendment offered by Congress, or to go around Congress itself with a Constitutional convention.
So, I think it is incorrect to say that today's decision takes the matter of same-sex marriage out of the hands of the people, or the hands of the states. Rather, it raises the bar that a government process must meet in order to discrimate by gender when recognizing a marriage.
It's helpful to remember that the balance of powers were carefully designed, with an overarching purpose of not centralizing power into a monarchy or aristocracy. We are by design not a nation governed by a panel of philosopher-kings.
Because the Supreme Court has lifetime tenure --- a design feature intended to isolate the justices from politics, not embed them in it --- there's a lot of tension involved in their powers. Unlike politicians, they can't easily be removed if there's a popular outcry against their decisions. They're the guardians of the Constitution. But the Constitution is first and foremost a document of procedural safeguards: it is most coherently and powerfully understood as a mechanism to ensure that all citizens have open channels to the decision-making of their own governance. The procedures of US government are meant to be zealously protected, but the substance is supposed to be left to the people.
So a lot of the dissent in today's result is best read as, "regardless of what we think of marriage equality, who are we to override the decisions of the people?" And further militating against today's substantive intervention by five pro-equality justices is the fact that marriage equality isn't really a process right. Whether or not your marriage is recognized has actually not much bearing on whether you're capable of making your voice heard.
Of course, there are even more powerful arguments in favor of marriage equality. For one thing, the black letter language of the Constitution, right smack in the beginning of it prior to any amendments, requires all the states to honor each other's judicial proceedings, public acts, and records. To allow Mississippi to reject a Massachusetts same-sex marriage is to contravene the process set up in the Constitution directly. That can happen, but probably not when the conflict is animated entirely by discrimination against a class of people.
All this is just to say: don't be too quick to discard the intellectual argument against Supreme Court-enforced marriage equality. There will be times in your life where the same arguments are going to make a lot more sense, applied to other issues.