The Supreme Court's decision in Obergefell v Hodges was, of course, correct: Marriage has "transcendent importance" is "essential to our most profound hopes and aspirations" and no-one should want to live in a State that deprives anyone of that liberty.
While I, generally, find Alito's opinions contain the clearest and most thoughtful analysis of what is most at stake, that is only somewhat true in this case:
-
The heart of Alito's dissent is a historical/technical argument:
Our Nation was founded upon the principle that every person has the unalienable right to liberty, but liberty is a term of many meanings. For classical liberals, it may include economic rights now limited by government regulation. For social democrats, it may include the right to a variety of government benefits... To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “‘deeply rooted in this Nation’s history and tradition.’” And it is beyond dispute that the right to same-sex marriage is not among those rights.
Alito's views are in-line with mainstream constitutional conservatism, which is, above all, afraid of unelected Justices imposing personal views. Kennedy seems generally more aligned with an ideological conservatism that would reject this relativistic dismissal of unalienable rights. As a political matter, the conservative surrender of unalienable rights to the more political branches (who are perfectly capable of enforcing claims of majorities against minorities) has not impeded the progress of government benefits, but has left us with a current court doctrine in which Religious Freedom seems entitled to about the same level of constitutional protection now as was once enjoyed by the Marranos.Roberts, consistent with Alito, argues that respect for the court, and by extension its legitimacy, flows from the perception that it exercises "humility and restraint in deciding cases according to the Constitution and law." Scalia, similarly, observes that "Judges are selected precisely for their skill as lawyers" and darkly warns that this decision moves the court "one step closer to being reminded of [it's] impotence." However, the reaction here provides strong indication that this sort of judicial conservatism has lost out, and one, more like Kennedy's, willing to assert unalienable rights is called for.
-
Alito goes on to contrast the current "understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry" (which creates a right to same-sex marriage) with the traditional concern for providing "the best atmosphere for raising children" (which, for Alito, does not). He acknowledges that "this traditional understanding of the purpose of marriage does not ring true to all ears today" (a dramatic understatement) which "undoubtedly is both a cause and a result" of the fact that "more than 40% of all children in this country are born to unmarried women." Given this, he argues it is not irrational for states to fear that trading the traditional for the current understanding (by recognizing same-sex marriage) "may contribute to marriage’s further decay."
He is certainly correct up to that it is too early to tell whether marriage divorced from family will be able to keep the promises that Hollywood, and now the Supreme Court, are making on its behalf. Should it fail, adherence to more traditional understandings will increase the privilege enjoyed by the upper class. However, even if this fear is not irrational, it hardly argues for denying people unalienable rights.
Alito's last section is concerned that this decision will be used to "vilify Americans who are unwilling to assent to the new orthodoxy" as "some may think that turnabout is fair play". Both Alito and Roberts note that the democratic process, now shut down, was more likely to "tie recognition to protection for conscience rights."
This is, of course, a secondary concern, with no certain outcome. It may turn out that, with this issue out of domestic politics, it may be easier for those with traditional views to portray their conscience rights as, mostly, harmless. Those committed to "stamp[ing] out every vestige of dissent" may find it harder to engage donors than was the case when more fundamental rights were at stake, especially as other civil rights issues come to the forefront. And as religious exercise is certainly also of "transcendent importance" and "essential to our most profound hopes and aspirations", perhaps its not too much to hope that, if challenged, the court will demonstrate that it's empathy is not just for-some.
