Justice Samuel Alito offered perhaps the flimsiest argument against marriage equality among the four dissents.
The conservative justice joined Chief Justice John Roberts and Justices Clarence Thomas and Antonin Scalia in voting against Obergefell v. Hodges.
Alito’s argument rested primarily on the perceived role of marriage in ordering society, noting ruefully that “the tie between marriage and procreation has frayed.”
He cited at length his own dissenting opinion in United States v. Windsor, where he argued that no one could possibly predict the “long-term ramifications of widespread acceptance of same-sex marriage.”
But just two paragraphs later, Alito predicts the future in his dissent to the Obergefell ruling.
“It will be used to vilify Americans who are unwilling to assent to the new orthodoxy,” Alito argued.
He complained that the court’s liberal majority compared marriage equality to equal rights for American women and blacks.
“The majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected,” Alito argued. “We will soon see whether this proves to be true. 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 argued that states should have been allowed to legalize same-sex marriage on their own timetable, and with possible allowances for religious people to discriminate against same-sex couples.
The majority’s rush to “invent a new right” and extend equal protection to same-sex couples had undermined the foundational rule of law, Alito warned.
“By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas,” Alito wrote. “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.”