"They [the majority] have discovered in the Fourteenth Amendment a 'fundamental right' overlooked by every person alive at the time of ratification, and almost everyone else in the time since."
Scalia called out the majority for acting like activists, not judges. (He was similarly critical in Thursday's ruling on health care.) "States are free to adopt whatever laws they like, even those that offend the esteemed Justices' 'reasoned judgment,'" he wrote.
Scalia's scorn went beyond picking apart the majority's legal judgement. He also made fun of their language.
The majority began its opinion with the line: "The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity."
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Scalia wrote that if he ever were to join an opinion that began with that sentence he "would hide my head in a bag," saying such language was more like the "mystical aphorisms of the fortune cookie" than, say, legendary Chief Justice John Marshall.
Elsewhere, the majority wrote "The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality."
Scalia scoffed at this assertion, saying that even "the nearest hippie" would know that marriage hinders the freedom of intimacy. Here are his words:
Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.
What the nearest hippie knows about intimacy, Scalia did not say.
Justice Clarence Thomas
In his own separate dissent, which Scalia also joined, Thomas pilloried the majority opinion as "at odds not only with the Constitution, but with the principles upon which our nation were built."
Kennedy and the Court's liberal wing are invoking a definition of "liberty" that the Constitution's framers "would not have recognized, to the detriment of the liberty they sought to protect."
"Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government," Thomas said. "This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it."
Thomas: "This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it."
Thomas argued that the majority erred in its interpretation of the 14th Amendment's due-process clause by reading it as more expansive and far-reaching than originally intended. The plantiffs lack standing on this issue, he continued, because they did not adequately show that a state ban on same-sex marriage constitutes a true deprivation of "liberty" under the law.