For your consideration, a selection of commentary I consider very valuable, re: the dissenting statements of the four Supreme Catholic men in Obergefell, much of it centering on the theme that the claim of those four justices that the majority opinion stretches the Constitution to recognize the rights of LGBT citizens is distinctly . . . odd . . . given how those very same gentlemen have bent the Constitution entirely out of shape in rulings like Citizens United v. FEC and Shelby County v. Holder when the rights of elites and corporations are at stake:
Beyond that, though, there is a special hypocrisy in these claims. Under long-established principles of constitutional interpretation, the cases in which it is most appropriate for the Court to take a more activist approach, and to give the least deference to the elected branches, are those in which a law disadvantages a historically oppressed group, for in that situation there is the greatest need for the judiciary to monitor abusive and discriminatory government action.
It is noteworthy that none of the cases in which these four justices have themselves engaged in unabashed judicial activism involved that situation. What they did involve was the enforcement of unambiguously conservative political beliefs. If one wants to make accusations of disingenuousness and judicial manipulation, those decisions present a most interesting opportunity. But in the Court's decision recognizing the right of same-sex couples to marry, the justices in the majority did precisely what the Constitution expects them to do -- protect the rights of those groups and individuals in society who have historically been subjected to oppression and discrimination.
The difference between the majority and the dissents, and between the liberal and conservative commentators, is about the appropriate role of the Supreme Court in a democratic society. Not surprisingly, the four dissenting opinions all accuse the majority of undue judicial activism and usurping the democratic process. This is always the dissent’s charge when the majority strikes down a law. Of course, none of the four dissenters seemed the least bit concerned with deference to the political process or avoiding judicial activism when two years ago they all were part of the majority in striking down key provisions of the Voting Rights Act that had been passed almost unanimously by Congress and signed into law by President George W. Bush. In that case, Shelby County v. Holder, it was not even possible to tell what constitutional provision the majority thought was violated by the Voting Rights Act. None of the four dissenters were the least bit concerned with deferring to the political process when they declared unconstitutional key provisions of the Bipartisan Campaign Finance Reform Act in Citizens United v. Federal Election Commission.
I'd like to focus on two cases, also decided by a 5–4 vote, that announced a new constitutional rule that is truly unsupported by the text of the Constitution.
First, and most glaringly, there's Citizens United. In that case, the court overturned a century of law—by the slimmest possible margin—to hold that corporations have a First Amendment right to spend unlimited sums of cash on electioneering. Yet the First Amendment contains no Unlimited Spending Clause asserting that corporations may dump as much cash as they please into elections. Rather, it contains a Free Speech Clause guaranteeing only "the freedom of speech." In deciding Citizens United, the conservative justices determined that spending money qualifies as speech, and that limitations on the use of that money violate corporations' "freedom of speech." This logic is, at best, a tenuous extrapolation from the text and meaning of the First Amendment. Still, the court's conservatives did not hesitate to force their dubious rewrite of the Free Speech Clause onto the country.
Second, we have the notorious Shelby County v. Holder. In Shelby County, the court invalidated a key provision of the Voting Rights Act, which required historically racist states to get federal permission before altering their voting procedures. Chief Justice John Roberts rooted his decision—another 5–4 one, note—in "the fundamental principle of equal sovereignty" of the states.
Were the dissenters more interested in understanding than ridiculing the majority opinion, they would see that equal protection considerations help explain why a right to same-sex marriage does not necessarily open the door to polygamy, adult incest, and the other supposed horribles in their gay shame parade. With a few notable exceptions, for thousands of years people have been stigmatized, beaten, and killed for the sin of loving someone of the same sex. The dissenters regard this shameful history only as the basis for continued denial of constitutional rights. The majority, by contrast, sees in this history of subordination a special reason to be skeptical of the reasons advanced for excluding same-sex couples from the institution of marriage.
Justice Kennedy writes: “Especially against a long history of disapproval of their relationships, th[e] denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.” It really is that simple.
It was no surprise that the Supreme Court held Friday that there is a constitutional right to same-sex marriage. It is very difficult to distinguish the case from Loving v. Virginia, which in 1967 invalidated state laws forbidding miscegenation. There was, as an economist would say, a "demand" (though rather limited) for biracial marriage, and it was difficult, to say the least, to comprehend why such marriages should be prohibited. In fact the only "ground" for the prohibition was bigotry. The same is true with respect to same-sex marriage. No more than biracial marriage does gay marriage harm people who don’t have or want to have such a marriage. The prohibition of same-sex marriage harms a nontrivial number of American citizens because other Americans disapprove of it though unaffected by it. . . .
[T]he chief justice’s dissent is heartless. There is of course a long history of persecution of gay people, a history punctuated by such names as Oscar Wilde, Pyotr Ilyich Tchaikovsky, and Alan Turing. Until quite recently, many American gays and lesbians took great pains to conceal their homosexuality in order to avoid discrimination. They value marriage just as straight people do. They want their adopted children to have the psychological and financial advantages of legitimacy. They are hurt by the discrimination that the dissenting justices condone. Prohibiting gay marriage is discrimination.
For an alternative view from the centrist Catholic journal Commonweal, which continues to find it difficult to welcome those who are gay or endorse their rights as it carries water for the hard right, see this article by Commonweal associate editor Matthew Boudway, celebrating the statements written by the four dissenting Supreme Catholic men, especially that of Justice Roberts.
The portrait of U.S. Supreme Court justice William Cushing (1732-1810) is available for sharing at Wikimedia Commons, with no information about its original source.