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Dissenting opinions in the Supreme Court's same-sex marriage ruling

Justice Anthony Kennedy joined the court's four liberal justices in the majority decision
Special Report: Supreme Court legalizes same-sex marriage 12:33

In Friday's historic ruling in Obergefell v. Hodges declaring same-sex marriage the law of the land, four justices disagreed with the majority, and each weighed in with his own dissent.

Associate Justice Clarence Thomas

Thomas interpreted "liberty" in the due process clause of the 14th Amendment as referring specifically to "freedom from restraint." With that in mind, he wrote that the petitioners couldn't claim "under the most plausible definition of 'liberty,' that they have been imprisoned or physically restrained by the States for participating in same-sex relationships," noting that they have "been left alone to order their lives as they see fit."

What they had not been granted by the states is the formal recognition of their marriages in a formal way, and Thomas argued, "Liberty is only freedom from governmental action, not an entitlement to governmental benefits."

Thomas' criticism of the majority was scathing: "Perhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advance the 'dignity' of same-sex couples...The flaw in that reasoning, of course, is that the Constitution contains no 'dignity' Clause, and even if it did, the government would be incapable of bestowing dignity."

And he maintained that the court had "short-circuit[ed]" the political process by not allowing states to define marriage for themselves, and he predicted the majority's decision could have "potentially ruinous consequences for religious liberty."

Chief Justice John Roberts

Roberts was the only dissenter to read his opinion from the bench.

"The majority today relies on its own understanding of what freedom is and must become," he said to the court, and the deepest problem with their decision was "the disrespect it shows the democratic process."

With this decision, proponents of same-sex marriage lost the opportunity to win acceptance through the democratic process, he said, and "they lose this just when the winds of change were freshening at their backs."

"Five lawyers," he said, deemed themselves chosen, "to burst the bonds of history."

Roberts wrote that the majority's approach was "deeply disheartening," and he criticized what he considered to be its activism. "Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be," he wrote.

He delved into the history of marriage and wrote that other cases that had changed aspects of marriage - like the Loving case - but none until now had changed its core structure as being between a man and a woman.

The chief justice also suggested that the logic applied by the majority to same-sex marriage might also be employed to defend polygamy, writing, "It is striking how much of the majority's reasoning would apply with equal force to the claim of a fundamental right to plural marriage."

And he, like Thomas, concluded that the majority decision prevented states from acting on same-sex marriage on their own. He predicted, "There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds."

And Roberts closed with this: "If you are among the many Americans--of whatever sexual orientation--who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it. I respectfully dissent."

Associate Justice Antonin Scalia

Scalia mocked the majority in his dissent, calling the opinion "judicial Putsch," said that it was filled with "straining-to-be-memorable passages."

He also wrote, "The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so," and continued in this vein: "The stuff contained in today's opinion has to diminish this Court's reputation for clear thinking and sober analysis."

Associate Justice Samuel Alito

Alito stood up for marriage as tradition that goes back for millenia, saying it was "inextricably linked" to procreation. He also wrote about about religious liberty in his dissent, saying the decision "will be used to vilify Americans who are unwilling to assent to the new orthodoxy."

He imagined "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."

And he, too warned that the Court was exceeding the limits of its power, writing, "Americans...should worry about what the majority's claim of power portends."

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