I wasn't surprised, not really. With public opinion having already shifted and a raft of lower court rulings asserting the right, I figured at least a 5-4 win for the good guys. Kennedy would, as usual, cast the swing vote. I could even imagine Roberts, who seems to have a keen eye for his legacy and a surprising ability to put aside conservative orthodoxy (as he did the day before in the Affordable Care Act case), coming over.
So I wasn't surprised, and yet when I saw the headline on the NYTimes, I wept.
Though all four justices in the minority wrote dissenting opinions, it's toward Scalia that I wish to turn my gaze, for it is Scalia who stands as the Court's conservative-wing intellectual leader. For many years it's been his voice that speaks loudest.
Scalia's argument can be summarized by this sentence from his dissent: "Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best." There was no need and no basis for the court to step in, he argues. Across the country, whatever movement on the issue that was occurring via the democratic process was exactly what should happen. Let the states work it out for themselves; the Constitution is silent on the issue.
I live in Colorado, and through our recent legalization of cannabis, I am privileged to see the state vs. federal debate played out in the most fascinating and useful way. We're moving the world forward by getting to challenge our country's insane drug laws via intrastate action.
Thus I am not one to reject the "states are the laboratories of democracy" argument out of hand. But within that space, one must question the consistency of Scalia's beliefs. Imagine that in the face of the question of same-sex marriage, a state had chosen to argue that marriage, as a religious institution and social convention, fell entirely outside the purview of the government, and that therefore that state would no longer recognize any marriage, gay or straight. Would Scalia have the courage to maintain his intellectual fidelity to the originalist view of the Constitution here, for certainly the Constitution is silent on all matters of marriage? I admit this is speculation on my part, but I strongly doubt it. I suspect Scalia would cringe at the notion that an institution by which we've ordered our world for literally millenia cannot be seen as a basic right in our culture, because the Constitution doesn't speak on the matter. Perhaps I am wrong, and perhaps Scalia is capable of that kind of intellectual consistency. But I doubt it.
But let's presume for a moment that he is thus capable, that he'd maintain his principles in the face of a legislative or democratic challenge to a social construct that predates our nation by literally thousands of years. Good for him. But for that to be true then he would have to be saying, similarly, that he would have sided against the majority in Loving v. Virginia, the 1969 case that struck down laws against so-called miscegenation. He'd be saying, too, that he would have sided in the minority of Brown v. Board of Education, on the same principles.
And thus we are able to see Scalia for what he truly is. Either he is the worst kind of intellectual coward--the sort of person who begins with his conclusion and essentially argues backward until he reaches his so-called principles, knowing that he can avoid ever facing a real test of those principles--or else he is simply hideous, as anyone who would still argue for any possible legitimacy to miscegenation laws or the doctrine of "Separate but Equal" clearly is.
Whichever it is, it is good to see that his time as leader, both intellectual and legal, is coming to an end. He will not be missed.
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