Over the Rainbow: Thoughts on the Dissents

This morning I read the OBERGEFELL v. HODGES dissents. In this post, I share my thoughts about the dissents. Summary: I feel sorry for Roberts and Thomas, I respect Scalia, and I hope Alito is wrong about the future.
1394370_10151605465645736_414297207_nJustice Roberts: “As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?”

[WENDA: If I misinterpret Roberts’ “we” to include all Americans who favor marriage equality, I can easily answer him: We’re people who understand compassion and fairness and love.]

Justice Scalia: “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.”

[WENDA: Scalia is brilliant here. I respect his dissent. He’s written many great points, and focuses not on what marriage should be, but rather focuses on what the court should be.]

Another quote from Justice Scalia: “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.”

[WENDA: That cracked me up!]

Justice Thomas: “Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved”

[WENDA: This sentence sounds terrible when taken out of context, as I did here and as did many on social media yesterday, but the sentence is not too bad in the context of its paragraph and the paragraph before it. Thomas simply wanted to say that dignity is innate. Too bad he stumbled into “Quote Hell” when making his point.]

[WENDA: The early parts of Thomas’ dissent look like they might have been written by a law clerk with a political philosophy and history major loving the chance to exercise that part of his or her brain. The history part includes many references to the Magna Carta.]

Justice Alito: “The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. * * * The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.”

[WENDA: I hope he’s wrong about forthcoming “bitter and lasting wounds.” I hope all of us who support marriage equality will find ways to respect the worth and dignity of those who don’t.]

More from Justice Alito about those with traditional views: “I assume 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.”

[WENDA: I share Alito’s concern here. We must continue to affirm the worth and dignity of all, even as we disagree with their views.]

What are your thoughts on the dissents? What are your thoughts on how well our diverse nation will treat dissent in the future? I welcome your comments. Thank you.

To read the entire OBERGEFELL v. HODGES decision, including dissents, see: http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

I took the photo of cherry tree leaves in England just a few miles from where the Magna Carta was signed 800 years ago. 

Note: Now that I’m back practicing law–both as a guardian ad litem representing the best interests of children in court, and as an attorney with a limited private practice–I figure that a law-related post is “fair game” for this blog about my thoughts on life and learning. 

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8 Comments on “Over the Rainbow: Thoughts on the Dissents”

  1. zacanator123 says:

    This may well be the most interesting and nuanced thing I’ve read about this entire issue. Thanks, as usual!

  2. byamtich says:

    Thanks for the selections from the dissents, and for the heads up to consider how to care for those with the old beliefs. I would expect that as institutions become less oppressive, there will be less scrutiny of people’s personal beliefs. For example, as science becomes common sense, there is less and less ridicule of young earth creationists.

  3. Paula Prober says:

    I like your approach to this post, Wenda. Quite interesting to hear your thoughts from your lawyer perspective. (love your images)

  4. So, I would be included in those who believe in traditional marriage. I loved this post because it’s the first time I’ve heard anyone who thinks otherwise say that my beliefs should be respected as well, and that’s not hyperbole. I’ve only been called a bigot, intolerant, and ridiculous. Not to my face, just by inference. On Friday, I told my Australian husband that we may need to move to his country because I apparently was no longer welcome here, as freedom has become only applicable if you believe a certain way. I’ve been wondering where my country went. Thanks for sharing this and for your thoughtfulness. Also, thanks for making me feel less nerd-ish for loving to read Supreme Court decisions in my spare time!

    • Wenda Sheard says:

      Lisa, I love your comment. Thank you. It make my reading and writing time all the more worthwhile. I hope you stay in the USA, and I hope the USA becomes more tolerant.

  5. Thank you, Wenda for your dignified response to the opposition on the gay marriage ruling. Though I disagree with you, I respect your presentation.

    I’m with you, Lisa; though the thought of moving never entered my mind. Instead, I see this decision as another chip off of America. The last country of true freedom.

    “Congress shall make no law respecting an establishment of religion, or prohibiting the FREE EXERCISE THEREOF; or abridging the freedom of speech,”

    What you call “equality”, I call a stripping of rights. The Supreme Court took away states’ rights (our state voted against gay marriage, but that was overridden). If it was purely a question of equality, why not a civil union? Don’t people who don’t adhere to a certain religion do that? Don’t heterosexuals find that just as binding? Why take the religious establishment of marriage and rip it from them? I really do want to understand the difference of opinion.

    The world has become a “complain and get what you want” country. If your voice is loud enough and you know the right people, there seems to be a way to twist every idea. It makes me angry, but most of all, it makes me sad. I don’t want to take from others and something was taken because of this decision.

    I feel an obligation to speak my perspective because of this:

    First they came for the Socialists, and I did not speak out—
    Because I was not a Socialist.
    Then they came for the Trade Unionists, and I did not speak out—
    Because I was not a Trade Unionist.
    Then they came for the Jews, and I did not speak out—
    Because I was not a Jew.
    Then they came for me—and there was no one left to speak for me.

    They came for religion.

    • Wenda Sheard says:

      Thanks for your comment. I’m with you in seeking to understand the difference of opinion.

      I’m hoping that the court’s decision will not result in a “ripping up the religious establishment of marriage.” The free exercise clause is a core part of the U.S. Constitution. I treasure my right to worship as I choose to worship, and carry out my life in a way consistent with my beliefs.

    • Lisa C. says:

      I wondered about the difference between civil unions and marriage, too. I think it’s good to understand as much as I can from all perspectives. From what I can tell on-line, a civil union does not include all the privileges associated with marriage – especially at the federal level for tax reasons, social security, inheritance, etc.


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