So begins Antonin Scalia’s scathing, wickedly funny dissent in Planned Parenthood v. Casey. His words were the first that came to mind when I read that the Supreme Court, in a 5-4 ruling in Obergefell v. Hodges, has just discovered a right to same-sex marriage in the Constitution. Thank God we’ve got an omnipotent, unelected, nine-person legislature to sort out minor issues like this for the other 300 million of us. Resolving these questions in the political arena — you know, through elected representatives — is such a hassle, anyway.
In their dissent today, CJ Roberts and AJ Scalia beg to differ, of course:
Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history [i.e., as a union of men with women] can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.
Sadly, this view of jurisprudence has pretty well gone out the window. Robert Jenson got it right, nearly two decades ago now: “It seems actually to be the case that politics, in the proper acceptation of the word, are now legally forbidden to representative assemblies or elected officials, for cumulative decisions of the supreme and appellate courts have in advance defined as ‘unconstitutional’ all legislation or regulation with moral content” (Systematic Theology v. 2, 80n40).