Scalia's dissent is worth a read. [...] Since there is no doubt whatever
that the People never decided to prohibit the limitation
of marriage to opposite-sex couples, the public debate
over same-sex marriage must be allowed to continue. But the Court ends this debate, in an opinion lacking
even a thin veneer of law. Buried beneath the mummeries
and straining-to-be-memorable passages of the opinion is a
candid and startling assertion: No matter what it was the
People ratified, the Fourteenth Amendment protects those
rights that the Judiciary, in its “reasoned judgment,”
thinks the Fourteenth Amendment ought to protect.
That is so because “[t]he generations that wrote and ratified
the Bill of Rights and the Fourteenth Amendment did
not presume to know the extent of freedom in all of its
dimensions . . . . ” One would think that sentence would
continue: “. . . and therefore they provided for a means by
which the People could amend the Constitution,” or perhaps
“. . . and therefore they left the creation of additional
liberties, such as the freedom to marry someone of the
same sex, to the People, through the never-ending process
of legislation.” But no. What logically follows, in the
majority’s judge-empowering estimation, is: “and so they
entrusted to future generations a charter protecting the
right of all persons to enjoy liberty as we learn its meaning.”
The “we,” needless to say, is the nine of us. “History
and tradition guide and discipline [our] inquiry but do
not set its outer boundaries.” Thus, rather than focusing
on the People’s understanding of “liberty”—at the time of
ratification or even today—the majority focuses on four
“principles and traditions” that, in the majority’s view,
prohibit States from defining marriage as an institution
consisting of one man and one woman. This is a naked judicial claim to legislative—indeed,
super-legislative—power; a claim fundamentally at odds
with our system of government. Except as limited by a
constitutional prohibition agreed to by the People, the
States are free to adopt whatever laws they like, even
those that offend the esteemed Justices’ “reasoned judgment.”
A system of government that makes the People
subordinate to a committee of nine unelected lawyers does
not deserve to be called a democracy. Judges are selected precisely for their skill as lawyers;
whether they reflect the policy views of a particular constituency
is not (or should not be) relevant. Not surprisingly
then, the Federal Judiciary is hardly a cross-section
of America. Take, for example, this Court, which consists
of only nine men and women, all of them successful lawyers
who studied at Harvard or Yale Law School. Four
of the nine are natives of New York City. Eight of them
grew up in east- and west-coast States. Only one hails
from the vast expanse in-between. Not a single Southwesterner
or even, to tell the truth, a genuine Westerner
(California does not count). Not a single evangelical
Christian (a group that comprises about one quarter of
Americans), or even a Protestant of any denomination.
The strikingly unrepresentative character of the body
voting on today’s social upheaval would be irrelevant if
they were functioning as judges, answering the legal
question whether the American people had ever ratified a
constitutional provision that was understood to proscribe
the traditional definition of marriage. But of course the
Justices in today’s majority are not voting on that basis;
they say they are not. And to allow the policy question of
same-sex marriage to be considered and resolved by a
select, patrician, highly unrepresentative panel of nine is
to violate a principle even more fundamental than no
taxation without representation: no social transformation
without representation.[...][I]t is not of
special importance to me what the law says about marriage.
It is of overwhelming importance, however, who it
is that rules me. Today’s decree says that my Ruler, and
the Ruler of 320 million Americans coast-to-coast, is a
majority of the nine lawyers on the Supreme Court. The
opinion in these cases is the furthest extension in fact—
and the furthest extension one can even imagine—of the
Court’s claimed power to create “liberties” that the Constitution
and its Amendments neglect to mention. This
practice of constitutional revision by an unelected committee
of nine, always accompanied (as it is today) by extravagant
praise of liberty, robs the People of the most important
liberty they asserted in the Declaration of
Independence and won in the Revolution of 1776: the
freedom to govern themselves.