Scalia isn't arguing that same-sex marriage should not be passed. In fact he's arguing his personal opinion is irrelevant. He's merely stating that he does not think same sex marriage should have become legal in the matter it did, by the ruling of nine naturally biased persons. These people do not represent all 320 million Americans and their viewpoints. Accordingly, this ruling by 9 persons undermines the views of the other 320 million of us. I'm glad this ruling occurred, but I'm inclined to agree with Scalia. It would have been better if the states had passed their own laws to similar effect, after due public discourse. Is this cold hearted? Yes, but let's not have personal emotion and beliefs interfere with the basic processes and beliefs that underline the American Constitution. I do think the 14th Amendment does guarantee the right to same sex marriage, but the precedent set here is more worrisome.
I understand strict constitutionalism but this is like coming down against Brown v. BOE and expecting the states to sort out segregation on their own. The Court has to at times drag the country into line with what is just even if it isn't through democratic means
I suppose we just have different views on how our government should work. Fair enough.
I can see where he's coming from on that extent, but at the same time, you could view it as a sort of escalation. Someone brought it before a court, and the court said "such and such verdict". To those seeking that verdict, things made sense. To those who disagreed, it did not. So, they exercised their freedoms and pushed further. It eventually lands at the feet of the Supreme Court. It's clear, when it has reached that point, that the opinions of 320 million Americans are difficult to sort through when it comes down to constitutional interpretation, so we're trusting our final "escalation point" to interpret it for us, because "Well, we can't agree on this. What do you say?" And then they pass their verdict. This didn't remove the rights of 320 million Americans; on the contrary, there are those who exercised them to reach this particular point. Then again, in a contrary vein, when the question is really "do we treat these other humans like we treat us humans?" and there were people saying no we obviously shouldn't because reasons... well, we're just glad the Supreme Court is there.
> the opinions of 320 million Americans are difficult to sort through when it comes down to constitutional interpretation > "Well, we can't agree on this. What do you say?" Opinions of 320 million Americans don't and shouldn't matter in Constitutional interpretation—that's the whole point of an unelected judiciary. The court's job isn't to reflect the balance of public opinion, nor to anticipate the long-term direction public opinion is heading in. The court's job isn't to be the final arbiter of public debate, it's to assess whether statutory laws are in violation of the Constitution. > This didn't remove the rights of 320 million Americans I'm not convinced. Every single referendum on the subject of gay marriage came down against it until Iowa. The majority of states that had legal gay marriage before this decision had enacted it via judicial fiat, overturning public referenda or statutory law passed by the public's representatives. What is happening when five justices invent something unwritten in the actual text of the Constitution in order to overturn both the existing results of the democratic process and any future democratic initiatives/revisions?
If the 14th Amendment guarantees the right to same sex marriage, then same sex marriage has to be legalized. That was the precedent set here--following the constitution and the rights it guarantees to all citizens. Many of the arguments that Scalia made could easily have been made against allowing interracial marriage. Likewise, they could have easily been made against abolition, or integration. What the 14th Amendment does is fight the "tyranny of the majority"--it protects the rights of marginalized groups from majority rulings. If the majority always had its way, slavery and segregation would still be legal. Sometimes the majority is wrong. Just because a lot of people believe something does not necessarily make it right. Several hundred years ago, the majority of the people believed that the sun revolved around the earth. Seventy years ago, the majority of Americans believed that the races should be segregated. Sometimes, the majority takes away the rights of the few--and in those instances, we should be grateful that a document like the Constitution gives the Supreme Court the (seldom-used) ability to overrule the majority.
Avaiihn's comment sums up my response better than I could in my own words