Justice Sam Alito filed his own dissenting opinion in Windsor, yesterday’s Supreme Court ruling that found Section 3 of the federal Defense of Marriage Act unconstitutional. Of the three dissents, most of the attention has focused on Justice Scalia’s, as I mentioned this morning. But Alito also had many insightful observations and arguments — albeit less animated than Scalia’s — that ought not be ignored.
He began his opinion by noting that “Our Nation is engaged in a heated debate about same-sex marriage,” a debate that ultimately concerns the fundamental “nature of the institution of marriage” itself. And this case was asking the Court “to intervene in that debate.”
On the question of standing, Alito agreed with the reasons provided in Scalia’s dissent that the Court had no authority to rule in Windsor. He then moved on to the merits of the case.
He first argued:
Same-sex marriage presents a highly emotional and important question of public policy — but not a difficult question of constitutional law. The Constitution does not guarantee the right to enter into a same-sex marriage. Indeed, no provision of the Constitution speaks to the issue.
Regarding the Fifth Amendment, he wrote that “it is well established that any ‘substantive’ component to the Due Process Clause protects only ‘those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition”‘” and which are implied by the principle of ordered liberty. For Alito, same-sex marriage patently fails to meet those long-held standards of rights and liberties.
Consequently, in acknowledging that this case sought “the recognition of a very new right … from unelected judges,” Alito contended the Court had “cause for both caution and humility.” This was especially true given that no one “can predict with any certainty what the long-term ramifications” of gay marriage will be. Therefore: “Any change on a question so fundamental should be made by the people through their elected officials.”
Finally, he framed the fundamental issue at hand as a “debate between two competing views of marriage.” The first, he argued, is the conjugal view that “sees marriage as an intrinsically opposite-sex institution” for the purpose of “channeling heterosexual intercourse into a structure that supports child-rearing.” Under this view, marriage is “essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.” The second is what he called the “consent-based” view of marriage, which defines the institution primarily as “the solemnization of mutual commitment — marked by strong emotional attachment and sexual attraction — between two persons.”
But because the Constitution codifies neither view and is silent on both, Alito believes that the majority imprudently went out of its way in endorsing the latter vision of marriage yesterday.
The Court should have instead left the debate to the people.