Scalia and Roberts slam liberal majority in same-sex marriage ruling: ‘Just who do we think we are?'
Justice Antonin Scalia (Flickr/Stephen Masker)

All four dissenters to the U.S. Supreme Court ruling on marriage equality issued opinions that warned darkly of far-reaching unintended consequences.


“Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening,” wrote Chief Justice John Roberts.

The chief justice argued that same-sex marriage supporters had been remarkably successful in recent years persuading voters to adopt their view on marriage equality – but “that ends today.”

“Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law,” Roberts said. “Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”

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He said the decision in Obergefell v. Hodges had invalidated the marriage laws of more than half the United Sates and the accepted standard in societies going back for millennia – from “the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs.”

“Just who do we think we are?” Roberts said.

Justice Antonin Scalia warned the ruling was “a threat to American democracy,” although he grumbled that the substance of the case was “not of immense personal importance to me.”

What concerned the conservative justice was that the Supreme Court had essentially declared itself the “Ruler of 320 million Americans from coast-to-coast.”

Like Roberts, Scalia complained that the court had put a stop to a “respectful” debate on same-sex marriage that was playing out in state legislatures – often in favor of marriage equality.

Scalia also took a personal swipe at Justice Anthony Kennedy, who wrote the majority opinion -- which he panned as "pretentious" and "egotistic."

“Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its ‘reasoned judgment,’ thinks the Fourteenth Amendment ought to protect,” Scalia wrote.

He warned darkly, using a word most strongly associated with Nazism, that the court's liberal majority had committed an act of violence against American law.

"But what really astounds is the hubris reflected in today’s judicial Putsch," Scalia wrote. "The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003."