Dissent on the Obergefell v. Hodges Decision

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The Supreme Court of the United States released their opinion on Obergefell v. Hodges. The decision came down to a 5-4 vote, with Chief Justice Roberts dissenting, joined by Justice Scalia and Thomas. Justice Alito also filed a dissenting opinion in which Scalia and Thomas also joined.

Chief Justice Roberts’ dissent delivers his opinion that the Supreme Court over –stepped their boundary as a Court, and thus have stolen this issue from the people of the United States. He dissents that the Constitution gives the Supreme Court the power to say what the law is, not what the law should be.  This statement really seems to portray the entire center of his dissent.  Further, he calls the decision of the court an “extraordinary step” and “ an act of will, not legal judgment.” He brings forth the realization that it can be tempting and an onerous job for Justices to rule on controversial issues, as they can easily confuse their own personal preferences with the requirements of the law.

He states that the Court is “not concerned with the wisdom or policy of legislation and the majority neglects that restrained conception of the judicial role.” Basically, Chief Justice Roberts again forces his theory of over-step, as the Court interpreted what the law “should be.”

Further, he makes clear that his dissent is not about his personal views on same-sex marriage, but rather it is about our democratic republic and the theory that this decision rests with the people of the United States and not with the Supreme Court of the United States. He also delves into a long list of precedential cases and historical cases such as Loving vs. Virginia, which gave interracial couples the right to marry.

He continues in his dissent to reference the majority, who provided definitions for marriage, as well as the historical and societal views of marriage and the marital relationship.  His two cents regarding the union of marriage seem to boil down to the idea that marriage is fundamental and did not come about as part of a political movement. He further states that, “marriage arose in the nature of things to meet a vital need: ensuring children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.” Further on this thought, he states and implies that procreation is a societal need and that society has recognized the act of procreation between a man and a woman as marriage.

He again explains that the majority’s view and decision is more of a social policy than of a matter of constitutional law. He explains that the majority’s argument “stripped of its shiny rhetorical gloss  is that the Due Process clause gives same- sex couples a fundamental right to marry because it will be good for them and for society.”

To make his dissent even more forthright and impactful, he read his dissent from the bench, something that he has never done in all of his ten year term as a Justice!

Justice Antonin Scalia, a fellow dissenter of the Chief, characterized the decision as a “judicial Putsch” and suggested that, before he signed on to an opinion like the majorities, “I would hide my head in a bag.”

Obergefell v. Hodges, No. 14-556, slip op. at 28 (Sup. Ct. June 26, 2015).

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