I think they summarise their arguments themselves. For example
"Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition."
There are plenty of other examples of far more extreme behavior that was tolerated. So saying a Roman Emperor was unable to marry is clearly wrong ex: Nero.
Don't get the tl;dr summary of Scalia's dissent; actually read it. Scalia is obnoxious and mean-spirited (and in fine form this time), but he's a really good writer, the fun- to- read kind.
IIRC, he wrote a book on writing with Brian Garner, of usage dictionary fame.
Ironically, Scalia's language in Windsor and Lawrence before that were what opened the door to federal courts nationwide overturning gay marriage bans:
"The real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘bare … desire to harm’ couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status" (Windsor, J. Scalia, dissenting).
“[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.” (Lawrence, J. Scalia, dissenting).
Roberts also argued Scalia's own logic back at him in this week's decision upholding the ACA, noting that in 2012 in the decision upholding the requirement to buy health insurance Scalia had stated in his dissent that without the subsidies (for low income insurance buyers), "the exchanges would not operate as Congress intended" because health insurance would be too expensive for low-income taxpayers.
I'm not being partisan but I lost a lot of respect for Scalia when he dissented in a death penalty case and stated (badly paraphrased) that it's essentially ok for the government to make mistakes and execute innocent people because the death penalty served as a valuable deterrent to crime.
I mean really - placing the interests of the state ahead of basic human rights? What could be a more fundamental violation of your rights than to be put to death for a crime you didn't commit?
In a theoretical world where no death penalty existed and was replaced with a life sentence it would at least be possible for someone that was wrongly convicted to be released from prison if exculpatory evidence comes to light.
I think he's often right. But unlike tptacek, I just can't muster any admiration for this dissent. It seemed so petulant, and more grounded in sophistry than law.
Maybe desegregation should have been handled at the state level. It's easy to say "of course the federal government should overrule the states" in cases where the states are obviously wrong, but what about the cases where it's the federal government that's in the wrong? Would standing up for the principle, even in repellent cases like segregation, do more good overall?
- "[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be."
- "The fundamental right to marry does not include a right to make a State change its definition of marriage."
- "Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept."
- "It is important to note with precision which laws petitioners have challenged. Although they discuss some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. The equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits."
Scalia:
- "This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves."
- "We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue. But the Court ends this debate, in an opinion lacking even a thin veneer of law."
Thomas:
- "[T]he majority invokes our Constitution in the name of a 'liberty' that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government."
- "Whether we define 'liberty' as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it. Petitioners cannot claim, under the most plausible definition of 'liberty,' that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace."
Alito:
- "The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State."
- "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."
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Disclaimer, IANAL - just picked the quotes that stuck out at me in each dissent.
Roberts' and Scalia's central theme was the Court overstepping its bounds and ending the legislative process prematurely. To me Roberts was essentially saying, "You guys are winning this on the legislative front easily, this is not something SCOTUS needs to decide." Thomas' was pretty cryptic and relied on lots of quotes from 18th and 19th century thinkers to define "liberty." Alito appealed to tradition and worried about this outcome producing a rush of lawsuits from religious institutions who were left in a limbo by the decision; he would have preferred state or national legislation that could clarify how this affected religious schools and such.
From what I read it is not a states right argument but an argument that the supreme court is supposed to interpert the laws not make them. Some quotes:
"Today, however, the Court takes the extraordinary stepof ordering every State to license and recognize same-sexmarriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sexmarriage have achieved considerable success persuading their fellow citizens—through the democratic process—toadopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriageas a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much moredifficult to accept."
"But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us.Under the Constitution, judges have power to say whatthe law is, not what it should be. The people who ratifiedthe Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered)."
Yep. Maybe we differ in our understanding of the phrase "states' rights argument" but the very first sentence you quoted screams "states' rights" to me - "Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage."
Well all rights not defined in the Constitution are inherently in the domain of the states. Marriage is not within the Constitution and this was not a Constitutional issue. This came before the courts mainly because Federal Law needed to be applied to all states for issues concerning pay, benefits, visitation, and so on. So it was more similar to interstate commerce than anything, it certainly wasn't under the equal protection clause because there had not been a national law denoting the designation as existing. No any attempts to say other wise can be slapped down by 14th Amendment challenges - as in gay couples are designated properly within the confines of the law (likely it may take a bill similar to the civil rights law to make it unquestionable)
