The Bigoted Stylings of Justice AlitoPosted: June 26, 2013
The U.S. Supreme Court’s exciting final day of the term was highlighted by its 5-4 ruling tossing most of the insidious Defense of Marriage Act onto the dustbin of constitutional history. Much of the gravity in the three separate dissents penned by conservative members of the Court — John Roberts, Antonin Scalia and Samuel Alito — was technical having to do with standing and jurisdiction rather than with the equal protection merits.
But beyond the technical issues, Alito and Scalia did take the opportunity in their dissents (pdf) to tell us how they really feel about marriage equality. Alito in particular went off the rails. Here are some excerpts from the world of equality according to Sam Alito:
It is beyond dispute that the right to interracial marriage is not deeply rooted in this Nation’s history and tradition…Past changes in the understanding of marriage—for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage—have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time. We can expect something similar to take place if interracial marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come. There are those who think that allowing interracial marriage will seriously undermine the institution of marriage… Others think that recognition of interracial marriage will fortify a now-shaky institution. At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of interracial marriage will be…The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of a different race, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of interracial marriage.
Ok, he didn’t quite write that … I changed “same-sex” to “interracial” and “a different race” where underlined. But otherwise he wrote exactly that. The Supreme Court figured out 46 years ago in Loving v. Virginia — a unanimous ruling — that in equal protection terms Alito’s kind of logic applied to interracial marriage won’t fly: “The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations.” Polls now show most Americans believe in that sentence even with the word “racial” removed. The Alitos out there will eventually be dragged into the twenty-first century (or should I say the late 1960s).
A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.