"The substance of today’s decree is not of immense personal importance to me," says Justice Scalia...

... beginning his dissenting opinion in Obergefell v. Hodges, today's same-sex marriage case. Scalia is joined by Justice Thomas, and Thomas also has a separate dissenting opinion, joined by Scalia.

The Chief Justice also has a dissenting opinion, joined by Scalia and Thomas. And Justice Alito has a dissenting opinion, joined by Scalia and Thomas. So Scalia and Thomas are on all 4 dissenting opinions, and the Chief and Alito are only on their own. That's a lot to sift through, and I'm going to do each of the dissenting opinions in separate posts. This is the Scalia post. I'm doing it first because I bet it's the most clearly written, and I expect to enjoy reading it (even though I'm a longtime supporter of same-sex marriage, and I think it was time for the Court to take a position on the right and end the disuniformity, and I think the majority opinion, discussed 2 posts down, is a worthy and competent application of the case law).

Justice Scalia has long objected to the Court's substantive due process cases, and that's what he does again here today. He thinks the Court is acting like a legislature when it protects the substance of fundamental liberties — he writes "liberties," in quotes — "that the Constitution and its Amendments neglect to mention." He writes that the people were doing a good job working through the same-sex marriage issue. It's been "American democracy at its best."

In a straining-to-be-memorable passage, Justice Scalia says the majority hides its usurpation of power "beneath the mummeries and straining-to-be-memorable passages of the opinion."  (A "mummery" is a "Ridiculous ceremony (formerly used esp. of religious ritual regarded as pretentious or hypocritical).") That's from the OED, which gives an example of the word from Frederick Lewis Allen's 1931 book "Only Yesterday/An Informal History of the 1920's": "[The Ku Klux Klan's] white robe and hood, its flaming cross, its secrecy, and the preposterous vocabulary of its ritual could be made the vehicle for all that infantile love of hocus-pocus and mummery, that lust for secret adventure, which survives in the adult whose lot is cast in drab places.")

Justice Scalia criticizes the majority's failure to stick to history as it delineates what liberties get protected as fundamental. You can see in the earlier post that Justice Kennedy set out 4 reasons that underlie the right-to-marry cases and that, he says, apply equally well to same-sex couples. Scalia does not try to distinguish same-sex and opposite-sex couples on these 4 points. He objects to talking about fundamental liberty in these terms at all, repeating over and over that the judges are acting like legislators. Even if it were acceptable for judges to make legislative decisions, the Supreme Court would be terribly unrepresentative of the people of the United States, Scalia says, because they are all lawyers, they all studied at the same 2 law schools (Harvard and Yale), not one is a Protestant Christian, and (except for one) they are all (as we say in Wisconsin) coasties.

Justice Scalia expresses astonishment at "the hubris reflected in today’s judicial Putsch." A "Putsch" is "An attempt to overthrow a government, esp. by violent means; an insurrection or coup d'état." That's the OED. "Hubris" is "o’erweening pride; and pride, we know, goeth before a fall." That's Scalia himself.

He complains that the "style" of the opinion "egotistic" — partaking of the "extravagances" ordinarily found in (ahem) dissenting opinions. He's especially bothered by: "The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality." "Really?," he responds. "Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie."

I misread "Ask the nearest hippie" when I glanced at it earlier. I thought he was accusing the majority of being so sloppy about finding the meaning of freedom that it was equivalent to asking the nearest hippie. But he was joking about marriage. Hippie voice: Marriage as freedom?! That's freaked-out, man. Marriage is the death of freedom.

Justice Scalia picks on a line that I thought, see below, was especially opaque: rights come from "a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era." His response is "Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?" That "stuff" isn't the "clear thinking and sober analysis" that belongs in a court opinion.

These are all familiar Scalia ideas. I get the impression he banged this one out pretty casually, making observations he's made many times before, in other opinions and in his many speeches. I'll hazard to say he's made his peace with same-sex marriage. He saw it coming long ago, and he's not upset about the social change. It's not of immense personal importance to me.