Vous semblez … considérer les juges comme les arbitres ultimes de toutes les questions constitutionnelles; doctrine très dangereuse en effet, et qui nous placerait sous le despotisme d’une oligarchie. Nos juges sont aussi honnêtes que les autres hommes, et pas plus. Ils ont, avec d’autres, les mêmes passions pour le parti, pour le pouvoir et le privilège de leur corps. Leur maxime est boni judicis est ampliare jurisdictionem [un bon juge élargit sa compétence], et leur pouvoir est d’autant plus dangereux qu’ils détiennent leur fonction à vie et qu’ils ne sont pas, comme les autres fonctionnaires, responsables devant un corps électoral. La Constitution n’a pas érigé un tribunal unique de ce genre, sachant que, quelles que soient les mains confiées, avec la corruption du temps et du parti, ses membres deviendraient des despotes. Il a plus judicieusement rendu tous les départements co-égaux et co-souverains en eux-mêmes. Thomas Jefferson (lettre à William Charles Jarvis, 28 septembre 1820)
Jamais un plus immense pouvoir judiciaire n’a été constitué chez aucun peuple. Tocqueville
Si le juge avait pu attaquer les lois d’une façon théorique et générale ; s’il avait pu prendre l’initiative et censurer le législateur, il fût entré avec éclat sur la scène politique ; devenu le champion ou l’adversaire d’un parti, il eût appelé toutes les passions qui divisent le pays à prendre part à la lutte. Mais quand le juge attaque une loi dans un débat obscur et sur une application particulière, il dérobe en partie l’importance de l’attaque aux regards du public. Son arrêt n’a pour but que de frapper un intérêt individuel ; la loi ne se trouve blessée que par hasard. Tocqueville
Qu’on y prenne garde, un pouvoir électif qui n’est pas soumis à un pouvoir judiciaire échappe tôt ou tard à tout contrôle ou est détruit. (…) L’extension du pouvoir judiciaire dans le monde politique doit donc être corrélative à l’extension du pouvoir électif. Si ces deux choses ne vont point ensemble, l’État finit par tomber en anarchie ou en servitude. Tocqueville (1835)
Ce qui est vraiment stupéfiant, c’est l’hubris qui se reflète dans le Putsch judiciaire d’aujourd’hui. Antonio Scalia
La Cour n’est pas une législature. (…) Que le mariage homosexuel soit une bonne idée ne devrait pas nous concerner mais est du ressort de la loi. John Roberts
I join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention to this Court’s threat to American democracy. (…) it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. 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. Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. (…) The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work. (…) But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect. That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ” (…) “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.” Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman. This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy. Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers18 who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation. But what really astounds is the hubris reflected into day’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution. The opinion is couched in a style that is as pretentiousas its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (Really? 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. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) (…) The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis. Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the“least dangerous” of the federal branches because it has“neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.” With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence. Antonin Scala
Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage. 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. The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term “liberty” inthe Due Process Clause of the Fourteenth Amendment encompasses this right. 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. For today’s majority, it has a distinctively postmodern meaning. 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. (…) Indeed: “In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Courtheld in 2003 that limiting marriage to opposite-sex couples violated the State Constitution. (…) Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000. “What [those arguing in favor of a constitutional right to same sex marriage] seek, therefore, is not the protection of a deeply rooted right but the recognitionof a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. Attempting to circumvent the problem presented by the newness of the right found in these cases, the majority claims that the issue is the right to equal treatment. Noting that marriage is a fundamental right, the majority argues that a State has no valid reason for denying that right to same-sex couples. This reasoning is dependent upon a particular understanding of the purpose of civil marriage. Although the Court expresses the point in loftier terms, its argument is that the fundamental purpose of marriage is to promote the well-being of those who choose to marry. Marriage provides emotional fulfillment and the promise of support in times of need. And by benefiting persons who choose to wed, marriage indirectly benefits society because persons who live in stable, fulfilling, and supportive relationships make better citizens. It is for these reasons, the argument goes, that States encourage and formalize marriage, confer special benefits on married persons, and also impose some special obligations. This understanding of the States’ reasons for recognizing marriage enables the majority to argue that same-sex marriage serves the States’ objectives in the same way as opposite-sex marriage. This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate. Adherents to different schools of philosophy use different terms to explain why society should formalize marriage and attach special benefits and obligations to persons who marry. Here, the States defending their adherence to the traditional understanding of marriage have explained their position using the pragmatic vocabulary that characterizes most American political discourse. Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples. If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women. This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage. While, for many, the attributes of marriage in 21st-century America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay. It is far beyond the outer reaches of this Court’s authority to say that a State may not adhere to the understanding of marriage that has long prevailed, not just in this country and others with similar cultural roots, but also in a great variety of countries and cultures all around the globe. As I wrote in Windsor: “The family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. 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 conse-quences. 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 same-sex 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 same-sex marriage will seriously undermine the institution of marriage. Others think that recognition of same-sex 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 same-sex marriage will be. And judges are certainly not equipped to make such an assessment. 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 the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.” (…) Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. (…) The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent. Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. (….) We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools. The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turn-about is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds. Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims. Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation. Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends. Joseph Alito
Over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex. 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 what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitaliza-tion altered).Although the policy arguments for extending marriageto same-sex couples may be compelling, the legal argu-ments for requiring such an extension are not. The fun-damental right to marry does not include a right to makea 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. Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. 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—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. The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” (…) As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are? It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitu-tion “is made for people of fundamentally differing views.” (…) Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer. (…) As the majority acknowledges, marriage “has existed for millennia and across civilizations.” (…) For all those millennia, across all those civilizations, “marriage”referred to only one relationship: the union of a man and a woman. (…) (petitioners conceding that they are not aware of any society that permitted same-sex marriage before 2001). (…) This universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship. (…) The premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond. Society has recognized that bond as marriage. And by bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without. As one prominent scholar put it, “Marriage is asocially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible,does not solve.” J. Q. Wilson, The Marriage Problem 41 (2002). (…) Allowing unelected federal judges to select which un-enumerated rights rank as “fundamental”—and to strike down state laws on the basis of that determination—raises obvious concerns about the judicial role. (…) In Loving, the Court held that racial restrictions on the right to marry lacked a compelling justification. In Zablocki, restrictions based on child support debts did not suffice. In Turner, restrictions based on status as a prisoner were deemed impermissible. None of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a woman. The laws challenged in Zablocki and Turner did not define marriage as “the union of a man and a woman, where neither party owes child support or is in prison.” Nor did the interracial marriage ban at issue in Loving define marriage as “the union of a man and a woman of the same race.” (…) Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases “presumed a relationship involving opposite-sex partners.” Ante, at 11. In short, the “right to marry” cases stand for the im-portant but limited proposition that particular restrictionson access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which isthe right petitioners actually seek here. (…) The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” (…) If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” (…) why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser” (…) But this approach is dangerous for the rule of law. The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now. I agree with the majority that the “nature of injustice is that we may not always see it in our own times.” (…) As petitioners put it, “times can blind.” (…) But to blind yourself to history is both prideful and unwise. “The past is never dead. It’s not even past.” W. Faulkner, Requiem for a Nun 92 (1951). (…) Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description—and dismissal—of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been “extensive litigation,” “many thoughtful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone. (…) What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.” (…) The answer is surely there in one of those amicus briefs or studies. Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.” (…) In our democracy, debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will. “Surely the Constitution does not put either the legislative branch or the executive branch in the position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unresolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” (…) As a plurality of this Court explained just last year, “It is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” (…) The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it. Here and abroad, people are in the midst of a serious and thoughtful public debate on the issue of same-sex marriage. They see voters carefully considering same-sex marriage, casting ballots in favor or opposed, and sometimes changing their minds. They see political leaders similarly reexamining their positions, and either reversing course or explaining adherence to old convictions confirmed anew. They see governments and businesses modifying policies and practices with respect to same-sex couples, and participating actively in the civic discourse. They see countries overseas democratically accepting profound social change, or declining to do so. This deliberative process is making people take seriously questions that they may not have even regarded as questions before. When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the resultof a fair and honest debate. In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again. (…) But today the Court puts a stop to all that. By deciding his question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs. Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution. (…) Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religiousbelievers may continue to “advocate” and “teach” their views of marriage. (…) The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses. Hard questions arise when people of faith exercisereligion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex mar-riage. (…) There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today. Perhaps the most discouraging aspect of today’s decisionis the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. (…) That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codify-ing the traditional definition of marriage is to “demea[n]or stigmatiz[e]” same-sex couples. (…) The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,”“disrespect and subordinate,” and inflict “[d]ignitarywounds” upon their gay and lesbian neighbors. (…) These apparent assaults on the character of fairminded people will have an effect, in society and in court. (…). Moreover, they are entirely gratuitous. It is one thing for the major-ity to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted. (…) If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex mar-riage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it. Justice Roberts
C’est au nom de la liberté, bien entendu, mais aussi au nom de l’« amour, de la fidélité, du dévouement » et de la nécessité de « ne pas condamner des personnes à la solitude » que la Cour suprême des Etats-Unis a finalement validé le mariage entre personnes de même sexe. Tels furent en tout cas les mots employés au terme de cette longue décision rédigée par le Juge Kennedy au nom de la Cour. (…) Le mariage gay est entré dans le droit américain non par la loi, librement débattue et votée au niveau de chaque Etat, mais par la jurisprudence de la plus haute juridiction du pays, laquelle s’impose à tous les Etats américains. Mais c’est une décision politique. Eminemment politique à l’instar de celle qui valida l’Obamacare, sécurité sociale à l’américaine, reforme phare du Président Obama, à une petite voix près. On se souviendra en effet que cette Cour a ceci de particulier qu’elle prétend être totalement transparente. Elle est composée de neuf juges, savants juristes, et rend ses décisions à la suite d’un vote. Point de bulletins secrets dans cette enceinte ; les votants sont connus. A se fier à sa composition, la Cour n’aurait jamais dû valider le mariage homosexuel : cinq juges conservateurs, quatre progressistes. Cinq a priori hostiles, quatre a priori favorables. Mais le sort en a décidé autrement ; le juge Kennedy, le plus modéré des conservateurs, fit bloc avec les progressistes, basculant ainsi la majorité en faveur de ces derniers. C’est un deuxième coup dur pour les conservateurs de la Cour en quelques mois : l’Obamacare bénéficia également de ce même coup du sort ; à l’époque ce fut le président, le Juge John Roberts, qui permit aux progressistes de l’emporter et de valider le système. (…) La spécificité de l’évènement est que ce sont des juges qui, forçant l’interprétation d’une Constitution qui ne dit rien du mariage homosexuel, ont estimé que cette union découlait ou résultait de la notion de « liberté ». C’est un « putsch judiciaire » selon l’emblématique juge Antonin Scalia, le doyen de la Cour. Un pays qui permet à un « comité de neuf juges non-élus » de modifier le droit sur une question qui relève du législateur et non du pouvoir judiciaire, ne mérite pas d’être considéré comme une « démocratie ». Mais l’autre basculement désormais acté, c’est celui d’une argumentation dont le centre de gravité s’est déplacé de la raison vers l’émotion, de la ratio vers l’affectus. La Cour Suprême des Etats-Unis s’est en cela bien inscrite dans une tendance incontestable au sein de la quasi-totalité des juridictions occidentales. L’idée même de raisonnement perd du terrain : énième avatar de la civilisation de l’individu, les juges éprouvent de plus en plus de mal à apprécier les arguments en dehors de la chaleur des émotions. Cette décision fait en effet la part belle à la médiatisation des revendications individualistes, rejouées depuis plusieurs mois sur le modèle de la « lutte pour les droits civiques ». Ainsi la Cour n’hésite pas à comparer les lois traditionnelles du mariage à celles qui, à une autre époque, furent discriminatoires à l’égard des afro-américains et des femmes. (…) La Maison Blanche s’est instantanément baignée des couleurs de l’arc-en-ciel, symbole de la « gaypride ». Les réseaux sociaux ont été inondés de ces mêmes couleurs en soutien à ce qui est maintenant connu sous le nom de la cause gay. (…) Comme le relève un autre juge de la Cour ayant voté contre cette décision, il est fort dommage que cela se fasse au détriment du droit et de la Constitution des Etats-Unis d’Amérique. Yohann Rimokh
Le président a dit a de nombreuses reprises qu’il était prêt a sortir de l’ornière de l’histoire. Ben Rhodes (conseiller de la Maison Blanche)
“The president said many times he’s willing to step out of the rut of history.” (…) Once again Rhodes has, perhaps inadvertently, exposed the president’s premises more clearly than the president likes to do. The rut of history: It is a phrase worth pondering. It expresses a deep scorn for the past, a zeal for newness and rupture, an arrogance about old struggles and old accomplishments, a hastiness with inherited precedents and circumstances, a superstition about the magical powers of the present. It expresses also a generational view of history, which, like the view of history in terms of decades and centuries, is one of the shallowest views of all.expresses also a generational view of history, which, like the view of history in terms of decades and centuries, is one of the shallowest views of all. This is nothing other than the mentality of disruption applied to foreign policy. In the realm of technology, innovation justifies itself; but in the realm of diplomacy and security, innovation must be justified, and it cannot be justified merely by an appetite for change. Tedium does not count against a principled alliance or a grand strategy. Indeed, a continuity of policy may in some cases—the Korean peninsula, for example: a rut if ever there was one—represent a significant achievement. (…) Obama seems to believe that the United States owes Iran some sort of expiation. As he explained to Thomas Friedman the day after the nuclear agreement was reached, “we had some involvement with overthrowing a democratically elected regime in Iran” in 1953. Six years ago, when the streets of Iran exploded in a democratic rebellion and the White House stood by as it was put down by the government with savage force against ordinary citizens, memories of Mohammad Mosaddegh were in the air around the administration, as if to explain that the United States was morally disqualified by a prior sin of intervention from intervening in any way in support of the dissidents. The guilt of 1953 trumped the duty of 2009. But what is the alternative? This is the question that is supposed to silence all objections. It is, for a start, a demagogic question. This agreement was designed to prevent Iran from acquiring nuclear weapons. If it does not prevent Iran from acquiring nuclear weapons—and it seems uncontroversial to suggest that it does not guarantee such an outcome—then it does not solve the problem that it was designed to solve. And if it does not solve the problem that it was designed to solve, then it is itself not an alternative, is it? The status is still quo. Or should we prefer the sweetness of illusion to the nastiness of reality? For as long as Iran does not agree to retire its infrastructure so that the manufacture of a nuclear weapon becomes not improbable but impossible, the United States will not have transformed the reality that worries it. We will only have mitigated it and prettified it. We will have found relief from the crisis, but not a resolution of it. The administration’s apocalyptic rhetoric about the deal is absurd: The temporary diminishments of Iran’s enrichment activities are not what stand between the Islamic Republic and a bomb. The same people who assure us that Iran has admirably renounced its aspiration to a nuclear arsenal now warn direly that a failure to ratify the accord will send Iranian centrifuges spinning madly again. They ridicule the call for more stringent sanctions against Iran because the sanctions already in place are “leaky” and crumbling, and then they promise us that these same failing measures can be speedily and reliably reconstituted in a nifty mechanism called “snapback.” Leon Wieseltier
De l’ornière à la poubelle de l’histoire ?
Au lendemain d’un prétendu accord « historique » sur le nucléaire iranien que son principal signataire reconnait ne pas avoir lu et que les Iraniens n’ont depuis, comme avec les précédents, cessé de dénoncer …
Et pour lequel l’Administration Obama a non seulement multiplié les mensonges et interdit, via le Conseil de sécurité de l’ONU, toute discussion à son propre Congrès …
Mais, dans la plus pure tradition des Pilate et Caïphe de l’histoire, rejeté à l’avance sur le dos de sa première victime les effets prétendument apocalyptiques que pourraient avoir sa contestation …
Après le véritable « putsch judiciaire » que l’on sait sur le prétendu « mariage pour tous » …
Comment ne pas voir, avec l’un des plus grands thuriféraires de l’actuelle Administration américaine écrivant de surcroit dans l’un de ses plus fidèles porte-voix …
La véritable obsession que semble être devenue pour toute une génération …
Hélas pas seulement américaine et pas seulement pour la diplomatie comme on peut le voir avec les socialistes actuellement au pouvoir en France et les aberrations sociétales telles que celle du « mariage pour tous »..
L’idée, aussi vide de contenu que lourde de catastrophes futures, du changement pour le changement ?
The Iran Deal and the Rut of History
Has the Obama administration’s pursuit of new beginnings blinded it to enduring enmities ?
Leon Wieseltier
The Atlantic
July 27, 2015
“The president said many times he’s willing to step out of the rut of history.” In this way Ben Rhodes of the White House, who over the years has broken new ground in the grandiosity of presidential apologetics, described the courage of Barack Obama in concluding the Joint Comprehensive Plan of Action with the Islamic Republic of Iran, otherwise known as the Iran deal. Once again Rhodes has, perhaps inadvertently, exposed the president’s premises more clearly than the president likes to do. The rut of history: It is a phrase worth pondering. It expresses a deep scorn for the past, a zeal for newness and rupture, an arrogance about old struggles and old accomplishments, a hastiness with inherited precedents and circumstances, a superstition about the magical powers of the present. It expresses also a generational view of history, which, like the view of history in terms of decades and centuries, is one of the shallowest views of all.
This is nothing other than the mentality of disruption applied to foreign policy. In the realm of technology, innovation justifies itself; but in the realm of diplomacy and security, innovation must be justified, and it cannot be justified merely by an appetite for change. Tedium does not count against a principled alliance or a grand strategy. Indeed, a continuity of policy may in some cases—the Korean peninsula, for example: a rut if ever there was one—represent a significant achievement. But for the president, it appears, the tradition of all the dead generations weighs like a nightmare on the brains of the living. Certainly it did in the case of Cuba, where the feeling that it was time to move on (that great euphemism for American impatience and inconstancy) eclipsed any scruple about political liberty as a condition for movement; and it did with Iran, where, as Rhodes admits, the president was tired of things staying the same, and was enduring history as a rut. And in the 21st century, when all human affairs are to begin again!
Obama’s restlessness about American policy toward Iran was apparent long before the question of Iran’s nuclear capability focused the mind of the world. In his first inaugural address, he famously offered an extended hand in exchange for an unclenched fist. Obama seems to believe that the United States owes Iran some sort of expiation. As he explained to Thomas Friedman the day after the nuclear agreement was reached, “we had some involvement with overthrowing a democratically elected regime in Iran” in 1953. Six years ago, when the streets of Iran exploded in a democratic rebellion and the White House stood by as it was put down by the government with savage force against ordinary citizens, memories of Mohammad Mosaddegh were in the air around the administration, as if to explain that the United States was morally disqualified by a prior sin of intervention from intervening in any way in support of the dissidents. The guilt of 1953 trumped the duty of 2009. The Iranian fist, in the event, stayed clenched. Or to put it in Rhodes-spin, our Iran policy remained in a rut.
But it is important to recognize that the rut—or the persistence of the adversarial relationship between Iran and the United States—was not a blind fate, or an accident of historical inertia, or a failure of diplomatic imagination. It was a choice. On the Iranian side, the choice was based upon a worldview that was founded in large measure on a fiery, theological anti-Americanism, an officially sanctioned and officially disseminated view of Americanism as satanism. On the American side, the choice was based upon an opposition to the tyranny and the terror that the Islamic Republic represented and proliferated. It is true that in the years prior to the Khomeini revolution the United States tolerated vicious abuses of human rights in Iran; but then our enmity toward the ayatollahs’ autocracy may be regarded as a moral correction. (A correction is an admirable kind of hypocrisy.) The adversarial relationship between America and the regime in Tehran has been based on the fact that we are proper adversaries. We should be adversaries. What democrat, what pluralist, what liberal, what conservative, what believer, what non-believer, would want this Iran for a friend?
When one speaks about an unfree country, one may refer either to its people or to its regime. One cannot refer at once to both, because they are not on the same side. Obama likes to think, when he speaks of Iran, that he speaks of its people, but in practice he has extended his hand to its regime. With his talk about reintegrating Iran into the international community, about the Islamic Republic becoming “a very successful regional power” and so on, he has legitimated a regime that was more and more lacking in legitimacy. (There was something grotesque about the chumminess, the jolly camaraderie, of the American negotiators and the Iranian negotiators. Why is Mohammad Javad Zarif laughing?) The text of the agreement states that the signatories will submit a resolution to the UN Security Council “expressing its desire to build a new relationship with Iran.” Not a relationship with a new Iran, but a new relationship with this Iran, as it is presently—that is to say, theocratically, oppressively, xenophobically, aggressively, anti-Semitically, misogynistically, homophobically—constituted. When the president speaks about the people of Iran, he reveals a bizarre refusal to recognize the character of life in a dictatorship. In his recent Nowruz message, for example, he exhorted the “people of Iran … to speak up for the future [they] seek.” To speak up! Does he think Iran is Iowa? The last time the people of Iran spoke up to their government, they left their blood on the streets. “Whether the Iranian people have sufficient influence to shift how their leaders think about these issues,” Obama told Friedman, “time will tell.” There he is again, the most powerful man in the world, backing off and bearing witness.
If I could believe that the Joint Comprehensive Plan of Action marked the end of Iran’s quest for a nuclear weapon—that it is, in the president’s unambiguous declaration, “the most definitive path by which Iran will not get a nuclear weapon” because “every pathway to a nuclear weapon is cut off”—I would support it. I do not support it because it is none of those things. It is only a deferral and a delay. Every pathway is not cut off, not at all. The accord provides for a respite of 15 years, but 15 years is just a young person’s idea of a long time. Time, to borrow the president’s words, will tell. Even though the text of the agreement twice states that “Iran reaffirms that under no circumstances will Iran ever seek, develop, or acquire any nuclear weapons,” there is no evidence that the Iranian regime has made a strategic decision to turn away from the possibility of the militarization of nuclear power. Its strategic objective has been, rather, to escape the sanctions and their economic and social severities. In this, it has succeeded. If even a fraction of the returned revenues are allocated to Iran’s vile adventures beyond its borders, the United States will have subsidized an expansion of its own nightmares.
But what is the alternative? This is the question that is supposed to silence all objections. It is, for a start, a demagogic question. This agreement was designed to prevent Iran from acquiring nuclear weapons. If it does not prevent Iran from acquiring nuclear weapons—and it seems uncontroversial to suggest that it does not guarantee such an outcome—then it does not solve the problem that it was designed to solve. And if it does not solve the problem that it was designed to solve, then it is itself not an alternative, is it? The status is still quo. Or should we prefer the sweetness of illusion to the nastiness of reality? For as long as Iran does not agree to retire its infrastructure so that the manufacture of a nuclear weapon becomes not improbable but impossible, the United States will not have transformed the reality that worries it. We will only have mitigated it and prettified it. We will have found relief from the crisis, but not a resolution of it.
The administration’s apocalyptic rhetoric about the deal is absurd: The temporary diminishments of Iran’s enrichment activities are not what stand between the Islamic Republic and a bomb. The same people who assure us that Iran has admirably renounced its aspiration to a nuclear arsenal now warn direly that a failure to ratify the accord will send Iranian centrifuges spinning madly again. They ridicule the call for more stringent sanctions against Iran because the sanctions already in place are “leaky” and crumbling, and then they promise us that these same failing measures can be speedily and reliably reconstituted in a nifty mechanism called “snapback.” And how self-fulfilling was the administration’s belief that no better deal was possible? On what grounds was its limited sense of possibility determined? Surely there is nothing utopian about the demand for a larger degree of confidence in this matter: The stakes are unimaginably high. It is worth noting also that the greater certainty demanded by the skeptics does not involve, as the president says, “eliminating the presence of knowledge inside of Iran,” which cannot be done. Many countries possess the science but do not pose the threat. The Iranian will, not the Iranian mind, is the issue.
The period of negotiations that has just come to a close was a twisted moment in American foreign policy. We were inhibited by the talks and they were not. The United States was reluctant to offend its interlocutors by offering any decisive challenge to their many aggressions in the region and beyond; we chose instead to inhibit ourselves. This has been an activist era in Iranian foreign policy and a passivist era in American foreign policy. (Even our refusal to offer significant assistance to Ukraine in its genuinely noble struggle against Russian intimidation and invasion was owed in part to our solicitude for the Russian standpoint on Iran.) I expect that the administration will prevail, alas, over the opposition to the Iran deal. The can will be kicked down the road, which is Obama’s characteristic method of arranging his “legacy” in foreign affairs. Our dread of an Iranian bomb will not have been dispelled; we will still need to keep “all options on the table”; we will continue to ponder anxiously the question of whether a military response to an Iranian breakout will ever be required; we will again be living by our nerves. All this does not constitute a diplomatic triumph. As a consequence of the accord, moreover, the mullahs in Tehran, and the fascist Revolutionary Guards that enforce their rule and profit wildly from it, will certainly not loosen their grip on their society or open it up. This “linkage” is a tired fiction. The sanctions were not what cast Iran into its political darkness.
This accord will strengthen a contemptible regime. And so I propose—futilely, I know—that now, in the aftermath of the accord, America proceed to weaken it. The conclusion of the Joint Comprehensive Plan of Action should be accompanied by a resumption of our hostility to the Iranian regime and its various forces. Diplomats like to say that you talk with your enemies. They are right. And we have talked with them. But they are still our enemies. This is the hour not for a fresh start but for a renovation of principle. We need to restore democratization to its pride of place among the priorities of our foreign policy and oppress the theocrats in Tehran everywhere with expressions, in word and in deed, of our implacable hostility to their war on their own people. We need to support the dissidents in any way we can, not least so that they do not feel abandoned and alone, and tiresomely demand the release of Mir-Hossein Mousavi and Mehdi Karroubi from the house arrest in which they have been sealed since the crackdown in 2009. (And how in good conscience could we have proceeded with the negotiations while the American journalist Jason Rezaian was a captive in an Iranian jail? Many years ago, when I studied the Dreyfus affair, I learned that there are times when an injustice to only one man deserves to bring things to a halt.) We need to despise the regime loudly and regularly, and damage its international position as fiercely and imaginatively as we can, for its desire to exterminate Israel. We need to arm the enemies of Iran in Syria and Iraq, and for many reasons. (In Syria, we have so far prepared 60 fighters: America is back!) We need to explore, with diplomatic daring, an American-sponsored alliance between Israel and the Sunni states, which are now experiencing an unprecedented convergence of interests.
But we will do none of this. We will instead persist in letting the fire spread and letting time tell, which we call realism. Wanting not to fight wars, we refuse to join struggles. Sometimes, I guess, history really is a rut.
Voir par ailleurs:
Mariage homosexuel : la Cour suprême des États-Unis consacre « l’amour »… et la victoire de l’émotion sur la raison
La Cour suprême américaine a légalisé vendredi 26 juin le mariage homosexuel dans l’ensemble des États-Unis. Et cela en irrite plus d’un.
Yohann Rimokh
Atlantico
2 Juillet 2015
C’est au nom de la liberté, bien entendu, mais aussi au nom de l’« amour, de la fidélité, du dévouement » et de la nécessité de « ne pas condamner des personnes à la solitude » que la Cour suprême des Etats-Unis a finalement validé le mariage entre personnes de même sexe. Tels furent en tout cas les mots employés au terme de cette longue décision rédigée par le Juge Kennedy au nom de la Cour. Les cinquante Etats de la fédération américaine sont concernés, en ce compris ceux qui jusqu’alors interdisaient de telles unions ; les débats au sein de ces Etats sont donc terminés.
C’est un gain de cause général ; une victoire totale des requérants venus des quatre coins des Etats-Unis. Le mariage gay est entré dans le droit américain non par la loi, librement débattue et votée au niveau de chaque Etat, mais par la jurisprudence de la plus haute juridiction du pays, laquelle s’impose à tous les Etats américains.
Mais c’est une décision politique.
Eminemment politique à l’instar de celle qui valida l’Obamacare, sécurité sociale à l’américaine, reforme phare du Président Obama, à une petite voix près. On se souviendra en effet que cette Cour a ceci de particulier qu’elle prétend être totalement transparente. Elle est composée de neuf juges, savants juristes, et rend ses décisions à la suite d’un vote. Point de bulletins secrets dans cette enceinte ; les votants sont connus. A se fier à sa composition, la Cour n’aurait jamais dû valider le mariage homosexuel : cinq juges conservateurs, quatre progressistes. Cinq a priori hostiles, quatre a priori favorables. Mais le sort en a décidé autrement ; le juge Kennedy, le plus modéré des conservateurs, fit bloc avec les progressistes, basculant ainsi la majorité en faveur de ces derniers. C’est un deuxième coup dur pour les conservateurs de la Cour en quelques mois : l’Obamacare bénéficia également de ce même coup du sort ; à l’époque ce fut le président, le Juge John Roberts, qui permit aux progressistes de l’emporter et de valider le système.
La décision validant le mariage homosexuel entrera sans doute dans l’histoire, mais elle ne présente pas d’originalité majeure ; l’argumentation qu’elle déploie nous est largement connue, à nous autres qui avons eu à suivre ce débat en France en 2013. La spécificité de l’évènement est que ce sont des juges qui, forçant l’interprétation d’une Constitution qui ne dit rien du mariage homosexuel, ont estimé que cette union découlait ou résultait de la notion de « liberté ».
C’est un « putsch judiciaire » selon l’emblématique juge Antonin Scalia, le doyen de la Cour. Un pays qui permet à un « comité de neuf juges non-élus » de modifier le droit sur une question qui relève du législateur et non du pouvoir judiciaire, ne mérite pas d’être considéré comme une « démocratie ».
Mais l’autre basculement désormais acté, c’est celui d’une argumentation dont le centre de gravité s’est déplacé de la raison vers l’émotion, de la ratio vers l’affectus. La Cour Suprême des Etats-Unis s’est en cela bien inscrite dans une tendance incontestable au sein de la quasi-totalité des juridictions occidentales. L’idée même de raisonnement perd du terrain : énième avatar de la civilisation de l’individu, les juges éprouvent de plus en plus de mal à apprécier les arguments en dehors de la chaleur des émotions. Cette décision fait en effet la part belle à la médiatisation des revendications individualistes, rejouées depuis plusieurs mois sur le modèle de la « lutte pour les droits civiques ». Ainsi la Cour n’hésite pas à comparer les lois traditionnelles du mariage à celles qui, à une autre époque, furent discriminatoires à l’égard des afro-américains et des femmes. Aurions-nous pu nous passer de telles comparaisons ? Ces comparaisons étaient-elles pertinentes ? Bien des choses permettent d’en douter.
La Maison Blanche s’est instantanément baignée des couleurs de l’arc-en-ciel, symbole de la « gaypride ». Les réseaux sociaux ont été inondés de ces mêmes couleurs en soutien à ce qui est maintenant connu sous le nom de la cause gay. Émotion, sentiments et business font décidément bon ménage au XXIe siècle.
Comme le relève un autre juge de la Cour ayant voté contre cette décision, il est fort dommage que cela se fasse au détriment du droit et de la Constitution des Etats-Unis d’Amérique.
Là encore, nous autres, avons déjà connu cela.
Voir par ailleurs:
CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.
SUPREME COURT OF THE UNITED STATES
Syllabus OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 14–556. Argued April 28, 2015—Decided June 26, 2015
Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sexcouples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex.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) (capitaliza-tion altered).Although the policy arguments for extending marriageto same-sex couples may be compelling, the legal argu-ments for requiring such an extension are not. The fun-damental right to marry does not include a right to makea State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that haspersisted in every culture throughout human history canhardly 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-sexcouples, or to retain the historic definition.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 ap-proach 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 mar-riage, making a dramatic social change that much moredifficult to accept The majority’s decision is an act of will, not legal judg-ment. The right it announces has no basis in the Consti-tution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invali-dates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthagin- ians and the Aztecs. Just who do we think we are? It can be tempting for judges to confuse our own prefer-ences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitu-tion “is made for people of fundamentally differing views.” Lochner v. New York, 198 U. S. 45, 76 (1905) (Holmes, J., dissenting). Accordingly, “courts are not concerned withthe wisdom or policy of legislation.” Id., at 69 (Harlan, J.,dissenting). The majority today neglects that restrained conception of the judicial role. It seizes for itself a ques-tion the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that ques-tion. And it answers that question based not on neutralprinciples of constitutional law, but on its own “under-standing of what freedom is and must become.” Ante, at 19. I have no choice but to dissent. Understand well what this dissent is about: It is not about whether, in my judgment, the institution of mar-riage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through theirelected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legaldisputes according to law. The Constitution leaves no doubt about the answer.
I
Petitioners and their amici base their arguments on the“right to marry” and the imperative of “marriage equality.”There is no serious dispute that, under our precedents, theConstitution protects a right to marry and requires Statesto apply their marriage laws equally. The real question in these cases is what constitutes “marriage,” or—moreprecisely—who decides what constitutes “marriage”?The majority largely ignores these questions, relegatingages of human experience with marriage to a paragraph or two. Even if history and precedent are not “the end” of these cases, ante, at 4, I would not “sweep away what hasso long been settled” without showing greater respect forall that preceded us. Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (slip op., at 8). A As the majority acknowledges, marriage “has existed formillennia and across civilizations.” Ante, at 3. For all those millennia, across all those civilizations, “marriage”referred to only one relationship: the union of a man and a woman. See ante, at 4; Tr. of Oral Arg. on Question 1, p. 12 (petitioners conceding that they are not aware of any society that permitted same-sex marriage before 2001). As the Court explained two Terms ago, “until recent years,. . . marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” United States v. Windsor, 570 U. S. ___, ___ (2013) (slip op., at 13). This universal definition of marriage as the union of aman and a woman is no historical coincidence. Marriagedid not come about as a result of a political movement,discovery, disease, war, religious doctrine, or any othermoving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a vital need:ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship. See G. Quale, A History of Marriage Systems 2 (1988); cf. M. Cicero, De Officiis 57(W. Miller transl. 1913) (“For since the reproductive in-stinct is by nature’s gift the common possession of all living creatures, the first bond of union is that between husband and wife; the next, that between parents and children; then we find one home, with everything in common.”).The premises supporting this concept of marriage are sofundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman.When sexual relations result in the conception of a child,that child’s prospects are generally better if the motherand father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occuronly between a man and a woman committed to a lasting bond. Society has recognized that bond as marriage. And bybestowing a respected status and material benefits onmarried couples, society encourages men and women to conduct sexual relations within marriage rather thanwithout. As one prominent scholar put it, “Marriage is asocially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible,does not solve.” J. Q. Wilson, The Marriage Problem 41 (2002).This singular understanding of marriage has prevailed in the United States throughout our history. The majorityaccepts that at “the time of the Nation’s founding [mar-riage] was understood to be a voluntary contract between a man and a woman.” Ante, at 6. Early Americans drew heavily on legal scholars like William Blackstone, whoregarded marriage between “husband and wife” as one of the “great relations in private life,” and philosophers likeJohn Locke, who described marriage as “a voluntary com-pact between man and woman” centered on “its chief end,procreation” and the “nourishment and support” of chil-dren. 1 W. Blackstone, Commentaries *410; J. Locke, Second Treatise of Civil Government §§78–79, p. 39 (J. Gough ed. 1947). To those who drafted and ratified the Constitution, this conception of marriage and family “wasa given: its structure, its stability, roles, and values ac-cepted by all.” Forte, The Framers’ Idea of Marriage and Family, in The Meaning of Marriage 100, 102 (R. George & J. Elshtain eds. 2006). The Constitution itself says nothing about marriage,and the Framers thereby entrusted the States with “[t]hewhole subject of the domestic relations of husband and wife.” Windsor, 570 U. S., at ___ (slip op., at 17) (quoting In re Burrus, 136 U. S. 586, 593–594 (1890)). There is no dispute that every State at the founding—and every Statethroughout our history until a dozen years ago—definedmarriage in the traditional, biologically rooted way. The four States in these cases are typical. Their laws, before and after statehood, have treated marriage as the union of a man and a woman. See DeBoer v. Snyder, 772 F. 3d 388, 396–399 (CA6 2014). Even when state laws did not spec- ify this definition expressly, no one doubted what they meant. See Jones v. Hallahan, 501 S. W. 2d 588, 589 (Ky. App. 1973). The meaning of “marriage” went without saying.Of course, many did say it. In his first American dic-tionary, Noah Webster defined marriage as “the legal union of a man and woman for life,” which served the purposes of “preventing the promiscuous intercourse of thesexes, . . . promoting domestic felicity, and . . . securing the maintenance and education of children.” 1 An American Dictionary of the English Language (1828). An influential 19th-century treatise defined marriage as “a civil status, existing in one man and one woman legally united for life for those civil and social purposes which are based in the distinction of sex.” J. Bishop, Commentaries on the Law ofMarriage and Divorce 25 (1852). The first edition of Black’s Law Dictionary defined marriage as “the civilstatus of one man and one woman united in law for life.” Black’s Law Dictionary 756 (1891) (emphasis deleted). The dictionary maintained essentially that same definitionfor the next century.This Court’s precedents have repeatedly described marriage in ways that are consistent only with its tradi-tional meaning. Early cases on the subject referred tomarriage as “the union for life of one man and one wom-an,” Murphy v. Ramsey, 114 U. S. 15, 45 (1885), which forms “the foundation of the family and of society, without which there would be neither civilization nor progress,” Maynard v. Hill, 125 U. S. 190, 211 (1888). We later described marriage as “fundamental to our very existence and survival,” an understanding that necessarily implies aprocreative component. Loving v. Virginia, 388 U. S. 1, 12 (1967); see Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942). More recent cases have directly connected the right to marry with the “right to procreate.” Zablocki v. Redhail, 434 U. S. 374, 386 (1978).As the majority notes, some aspects of marriage havechanged over time. Arranged marriages have largely given way to pairings based on romantic love. States have replaced coverture, the doctrine by which a married man and woman became a single legal entity, with laws thatrespect each participant’s separate status. Racial re-strictions on marriage, which “arose as an incident to slavery” to promote “White Supremacy,” were repealed bymany States and ultimately struck down by this Court.
Loving, 388 U. S., at 6–7. The majority observes that these developments “werenot mere superficial changes” in marriage, but rather“worked deep transformations in its structure.” Ante, at 6–7. They did not, however, work any transformation in the core structure of marriage as the union between a manand a woman. If you had asked a person on the street how marriage was defined, no one would ever have said, “Mar-riage is the union of a man and a woman, where the woman is subject to coverture.” The majority may be right thatthe “history of marriage is one of both continuity andchange,” but the core meaning of marriage has endured. Ante, at 6. B Shortly after this Court struck down racial restrictionson marriage in Loving, a gay couple in Minnesota sought a marriage license. They argued that the Constitution required States to allow marriage between people of thesame sex for the same reasons that it requires States toallow marriage between people of different races. The Minnesota Supreme Court rejected their analogy to Lov-ing, and this Court summarily dismissed an appeal. Baker v. Nelson, 409 U. S. 810 (1972).In the decades after Baker, greater numbers of gays and lesbians began living openly, and many expressed a desire to have their relationships recognized as marriages. Over time, more people came to see marriage in a way thatcould be extended to such couples. Until recently, thisnew view of marriage remained a minority position. After the Massachusetts Supreme Judicial Court in 2003 inter-preted its State Constitution to require recognition of same-sex marriage, many States—including the four at issue here—enacted constitutional amendments formally adopting the longstanding definition of marriage. Over the last few years, public opinion on marriage has shifted rapidly. In 2009, the legislatures of Vermont, New Hampshire, and the District of Columbia became the firstin the Nation to enact laws that revised the definition of marriage to include same-sex couples, while also providing accommodations for religious believers. In 2011, the New York Legislature enacted a similar law. In 2012, voters in Maine did the same, reversing the result of a referendumjust three years earlier in which they had upheld the traditional definition of marriage.In all, voters and legislators in eleven States and theDistrict of Columbia have changed their definitions ofmarriage to include same-sex couples. The highest courtsof five States have decreed that same result under their own Constitutions. The remainder of the States retain the traditional definition of marriage.Petitioners brought lawsuits contending that the DueProcess and Equal Protection Clauses of the FourteenthAmendment compel their States to license and recognize marriages between same-sex couples. In a carefully rea-soned decision, the Court of Appeals acknowledged thedemocratic “momentum” in favor of “expand[ing] the definition of marriage to include gay couples,” but con-cluded that petitioners had not made “the case for consti-tutionalizing the definition of marriage and for removingthe issue from the place it has been since the founding: inthe hands of state voters.” 772 F. 3d, at 396, 403. That decision interpreted the Constitution correctly, and I would affirm. II Petitioners first contend that the marriage laws of theirStates violate the Due Process Clause. The Solicitor Gen-eral of the United States, appearing in support of petition-ers, expressly disowned that position before this Court. See Tr. of Oral Arg. on Question 1, at 38–39. The majoritynevertheless resolves these cases for petitioners based almost entirely on the Due Process Clause.The majority purports to identify four “principles andtraditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry. Ante, at 12. In reality, however, the majority’s ap-proach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that char-acterized discredited decisions such as Lochner v. New York, 198 U. S. 45. Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marrybecause it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s posi-tion indefensible as a matter of constitutional law. A Petitioners’ “fundamental right” claim falls into themost sensitive category of constitutional adjudication. Petitioners do not contend that their States’ marriage lawsviolate an enumerated constitutional right, such as the freedom of speech protected by the First Amendment. There is, after all, no “Companionship and Understand-ing” or “Nobility and Dignity” Clause in the Constitution. See ante, at 3, 14. They argue instead that the laws vio-late a right implied by the Fourteenth Amendment’srequirement that “liberty” may not be deprived without “due process of law.”This Court has interpreted the Due Process Clause toinclude a “substantive” component that protects certainliberty interests against state deprivation “no matter whatprocess is provided.” Reno v. Flores, 507 U. S. 292, 302 (1993). The theory is that some liberties are “so rooted in the traditions and conscience of our people as to be rankedas fundamental,” and therefore cannot be deprived with-out compelling justification. Snyder v. Massachusetts, 291 U. S. 97, 105 (1934).Allowing unelected federal judges to select which un-enumerated rights rank as “fundamental”—and to strike down state laws on the basis of that determination—raises obvious concerns about the judicial role. Our precedentshave accordingly insisted that judges “exercise the utmost care” in identifying implied fundamental rights, “lest theliberty protected by the Due Process Clause be subtlytransformed into the policy preferences of the Members of this Court.” Washington v. Glucksberg, 521 U. S. 702, 720 (1997) (internal quotation marks omitted); see Kennedy,Unenumerated Rights and the Dictates of Judicial Re-straint 13 (1986) (Address at Stanford) (“One can conclude that certain essential, or fundamental, rights should existin any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an idealsystem.”).The need for restraint in administering the strong medi-cine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantivedue process to strike down a statute in Dred Scott v. Sand-ford, 19 How. 393 (1857). There the Court invalidated the Missouri Compromise on the ground that legislation re-stricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own concep-tion of liberty and property in doing so. It asserted that “an act of Congress which deprives a citizen of the UnitedStates of his liberty or property, merely because he camehimself or brought his property into a particular Territoryof the United States . . . could hardly be dignified with thename of due process of law.” Id., at 450. In a dissent that has outlasted the majority opinion, Justice Curtis ex-plained that when the “fixed rules which govern the inter-pretation of laws [are] abandoned, and the theoretical opinions of individuals are allowed to control” the Consti-tution’s meaning, “we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is,according to their own views of what it ought to mean.” Id., at 621. Dred Scott’s holding was overruled on the battlefields ofthe Civil War and by constitutional amendment afterAppomattox, but its approach to the Due Process Clausereappeared. In a series of early 20th-century cases, most prominently Lochner v. New York, this Court invalidated state statutes that presented “meddlesome interferences with the rights of the individual,” and “undue interferencewith liberty of person and freedom of contract.” 198 U. S., at 60, 61. In Lochner itself, the Court struck down a New York law setting maximum hours for bakery employees, because there was “in our judgment, no reasonable foun-dation for holding this to be necessary or appropriate as ahealth law.” Id., at 58. The dissenting Justices in Lochner explained that theNew York law could be viewed as a reasonable response tolegislative concern about the health of bakery employees,an issue on which there was at least “room for debate and for an honest difference of opinion.” Id., at 72 (opinion of Harlan, J.). The majority’s contrary conclusion requiredadopting as constitutional law “an economic theory which a large part of the country does not entertain.” Id., at 75 (opinion of Holmes, J.). As Justice Holmes memorably putit, “The Fourteenth Amendment does not enact Mr. Her-bert Spencer’s Social Statics,” a leading work on the phi-losophy of Social Darwinism. Ibid. The Constitution “is not intended to embody a particular economic theory . . . . It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to concludeour judgment upon the question whether statutes embodyng them conflict with the Constitution.” Id., at 75–76. In the decades after Lochner, the Court struck down nearly 200 laws as violations of individual liberty, oftenover strong dissents contending that “[t]he criterion ofconstitutionality is not whether we believe the law to befor the public good.” Adkins v. Children’s Hospital of D. C., 261 U. S. 525, 570 (1923) (opinion of Holmes, J.). Byempowering judges to elevate their own policy judgments to the status of constitutionally protected “liberty,” the Lochner line of cases left “no alternative to regarding the court as a . . . legislative chamber.” L. Hand, The Bill of Rights 42 (1958).Eventually, the Court recognized its error and vowednot to repeat it. “The doctrine that . . . due process author-izes courts to hold laws unconstitutional when they believe the legislature has acted unwisely,” we later explained,“has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judg-ment of legislative bodies, who are elected to pass laws.” Ferguson v. Skrupa, 372 U. S. 726, 730 (1963); see Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421, 423 (1952) (“we do not sit as a super-legislature to weigh the wisdomof legislation”). Thus, it has become an accepted rule that the Court will not hold laws unconstitutional simply be-cause we find them “unwise, improvident, or out of har-mony with a particular school of thought.” Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 488 (1955). Rejecting Lochner does not require disavowing thedoctrine of implied fundamental rights, and this Court hasnot done so. But to avoid repeating Lochner’s error of converting personal preferences into constitutional man-dates, our modern substantive due process cases havestressed the need for “judicial self-restraint.” Collins v. Harker Heights, 503 U. S. 115, 125 (1992). Our precedentshave required that implied fundamental rights be “objectively, deeply rooted in this Nation’s history and tradi-tion,” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U. S., at 720–721 (internal quotation marks omitted). Although the Court articulated the importance of his- tory and tradition to the fundamental rights inquiry most precisely in Glucksberg, many other cases both before and after have adopted the same approach. See, e.g., District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U. S. 52, 72 (2009); Flores, 507 U. S., at 303; United States v. Salerno, 481 U. S. 739, 751 (1987); Moore v. East Cleve-land, 431 U. S. 494, 503 (1977) (plurality opinion); see also id., at 544 (White, J., dissenting) (“The Judiciary, includ-ing this Court, is the most vulnerable and comes nearestto illegitimacy when it deals with judge-made constitu-tional law having little or no cognizable roots in the lan-guage or even the design of the Constitution.”); Troxel v. Granville, 530 U. S. 57, 96–101 (2000) (KENNEDY, J., dissenting) (consulting “‘[o]ur Nation’s history, legal tradi-tions, and practices’” and concluding that “[w]e owe it tothe Nation’s domestic relations legal structure . . . to proceed with caution” (quoting Glucksberg, 521 U. S., at 721)).Proper reliance on history and tradition of course re-quires looking beyond the individual law being challenged, so that every restriction on liberty does not supply its ownconstitutional justification. The Court is right about that. Ante, at 18. But given the few “guideposts for responsible decisionmaking in this unchartered area,” Collins, 503 U. S., at 125, “an approach grounded in history imposeslimits on the judiciary that are more meaningful than any based on [an] abstract formula,” Moore, 431 U. S., at 504, n. 12 (plurality opinion). Expanding a right suddenly and dramatically is likely to require tearing it up from its roots. Even a sincere profession of “discipline” in identifying fundamental rights, ante, at 10–11, does not provide a meaningful constraint on a judge, for “what he is reallylikely to be ‘discovering,’ whether or not he is fully aware of it, are his own values,” J. Ely, Democracy and Distrust44 (1980). The only way to ensure restraint in this deli-cate enterprise is “continual insistence upon respect for the teachings of history, solid recognition of the basicvalues that underlie our society, and wise appreciation of the great roles [of] the doctrines of federalism and separa-tion of powers.” Griswold v. Connecticut, 381 U. S. 479, 501 (1965) (Harlan, J., concurring in judgment). B The majority acknowledges none of this doctrinal back-ground, and it is easy to see why: Its aggressive applica-tion of substantive due process breaks sharply with dec-ades of precedent and returns the Court to the unprincipled approach of Lochner. 1 The majority’s driving themes are that marriage isdesirable and petitioners desire it. The opinion describesthe “transcendent importance” of marriage and repeatedlyinsists that petitioners do not seek to “demean,” “devalue,”“denigrate,” or “disrespect” the institution. Ante, at 3, 4, 6, 28. Nobody disputes those points. Indeed, the compellingpersonal accounts of petitioners and others like them are likely a primary reason why many Americans havechanged their minds about whether same-sex couples should be allowed to marry. As a matter of constitutional law, however, the sincerity of petitioners’ wishes is not relevant. When the majority turns to the law, it relies primarilyon precedents discussing the fundamental “right to marry.” Turner v. Safley, 482 U. S. 78, 95 (1987); Zablocki, 434 U. S., at 383; see Loving, 388 U. S., at 12. These cases do not hold, of course, that anyone who wants to get mar-ried has a constitutional right to do so. They insteadrequire a State to justify barriers to marriage as thatinstitution has always been understood. In Loving, the Court held that racial restrictions on the right to marrylacked a compelling justification. In Zablocki, restrictions based on child support debts did not suffice. In Turner, restrictions based on status as a prisoner were deemed impermissible.None of the laws at issue in those cases purported tochange the core definition of marriage as the union of a man and a woman. The laws challenged in Zablocki and Turner did not define marriage as “the union of a man and a woman, where neither party owes child support or is in prison.” Nor did the interracial marriage ban at issue in Loving define marriage as “the union of a man and a woman of the same race.” See Tragen, Comment, Statu-tory Prohibitions Against Interracial Marriage, 32 Cal.L. Rev. 269 (1944) (“at common law there was no ban on interracial marriage”); post, at 11–12, n. 5 (THOMAS, J., dissenting). Removing racial barriers to marriage there-fore did not change what a marriage was any more thanintegrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed inevery one of these cases “presumed a relationship involv-ing opposite-sex partners.” Ante, at 11. In short, the “right to marry” cases stand for the im-portant but limited proposition that particular restrictionson access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which isthe right petitioners actually seek here. See Windsor, 570 U. S., at ___ (ALITO, J., dissenting) (slip op., at 8) (“WhatWindsor and the United States seek . . . is not the protec-tion of a deeply rooted right but the recognition of a verynew right.”). Neither petitioners nor the majority cites a single case or other legal source providing any basis for such a constitutional right. None exists, and that is enough to foreclose their claim. 2 The majority suggests that “there are other, more in-structive precedents” informing the right to marry. Ante, at 12. Although not entirely clear, this reference seems tocorrespond to a line of cases discussing an implied funda-mental “right of privacy.” Griswold, 381 U. S., at 486. In the first of those cases, the Court invalidated a criminal law that banned the use of contraceptives. Id., at 485– 486. The Court stressed the invasive nature of the ban, which threatened the intrusion of “the police to search the sacred precincts of marital bedrooms.” Id., at 485. In the Court’s view, such laws infringed the right to privacy in its most basic sense: the “right to be let alone.” Eisenstadt v. Baird, 405 U. S. 438, 453–454, n. 10 (1972) (internal quo-tation marks omitted); see Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting).The Court also invoked the right to privacy in Lawrence v. Texas, 539 U. S. 558 (2003), which struck down a Texas statute criminalizing homosexual sodomy. Lawrence relied on the position that criminal sodomy laws, like bans on contraceptives, invaded privacy by inviting “unwar-ranted government intrusions” that “touc[h] upon the most private human conduct, sexual behavior . . . in themost private of places, the home.” Id., at 562, 567. Neither Lawrence nor any other precedent in the pri-vacy line of cases supports the right that petitioners asserthere. Unlike criminal laws banning contraceptives andsodomy, the marriage laws at issue here involve no gov-ernment intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together,to engage in intimate conduct, and to raise their fami- lies as they see fit. No one is “condemned to live in loneliness” by the laws challenged in these cases—no one. Ante, at 28. At the same time, the laws in no way interfere with the “right to be let alone.” The majority also relies on Justice Harlan’s influentialdissenting opinion in Poe v. Ullman, 367 U. S. 497 (1961). As the majority recounts, that opinion states that “[d]ue process has not been reduced to any formula.” Id., at 542. But far from conferring the broad interpretive discretionthat the majority discerns, Justice Harlan’s opinion makes clear that courts implying fundamental rights are not“free to roam where unguided speculation might takethem.” Ibid. They must instead have “regard to what history teaches” and exercise not only “judgment” but“restraint.” Ibid. Of particular relevance, Justice Harlanexplained that “laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up . . . form a pattern so deeply pressed into the substance of our social life that any Constitutional doc-trine in this area must build upon that basis.” Id., at 546. In sum, the privacy cases provide no support for themajority’s position, because petitioners do not seek pri- vacy. Quite the opposite, they seek public recognition of their relationships, along with corresponding government benefits. Our cases have consistently refused to allow litigants to convert the shield provided by constitutional liberties into a sword to demand positive entitlementsfrom the State. See DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189, 196 (1989); San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 35–37 (1973); post, at 9–13 (THOMAS, J., dissenting). Thus, although the right to privacy recognized by our precedentscertainly plays a role in protecting the intimate conduct of same-sex couples, it provides no affirmative right to rede-fine marriage and no basis for striking down the laws atissue here.
Perhaps recognizing how little support it can derivefrom precedent, the majority goes out of its way to jettison the “careful” approach to implied fundamental rightstaken by this Court in Glucksberg. Ante, at 18 (quoting 521 U. S., at 721). It is revealing that the majority’s posi-tion requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process. At least this part of the majority opinion has the virtue of candor. Nobody could rightly accuse the majorityof taking a careful approach. Ultimately, only one precedent offers any support for the majority’s methodology: Lochner v. New York, 198 U. S. 45. The majority opens its opinion by announcing petitioners’ right to “define and express their identity.” Ante, at 1–2. The majority later explains that “the right topersonal choice regarding marriage is inherent in theconcept of individual autonomy.” Ante, at 12. This free-wheeling notion of individual autonomy echoes nothing somuch as “the general right of an individual to be free in his person and in his power to contract in relation to his own labor.” Lochner, 198 U. S., at 58 (emphasis added).To be fair, the majority does not suggest that its indi-vidual autonomy right is entirely unconstrained. The constraints it sets are precisely those that accord with its own “reasoned judgment,” informed by its “new insight”into the “nature of injustice,” which was invisible to allwho came before but has become clear “as we learn [the] meaning” of liberty. Ante, at 10, 11. The truth is that today’s decision rests on nothing more than the majority’sown conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny themthis right.” Ante, at 19. Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences adopted in Lochner. See 198 U. S., at 61 (“We do not believe in the soundness of the views which uphold thislaw,” which “is an illegal interference with the rights ofindividuals . . . to make contracts regarding labor upon such terms as they may think best”). The majority recognizes that today’s cases do not mark “the first time the Court has been asked to adopt a cau-tious approach to recognizing and protecting fundamental rights.” Ante, at 25. On that much, we agree. The Court was “asked”—and it agreed—to “adopt a cautious ap-proach” to implying fundamental rights after the debacleof the Lochner era. Today, the majority casts cautionaside and revives the grave errors of that period. One immediate question invited by the majority’s posi-tion is whether States may retain the definition of mar-riage as a union of two people. Cf. Brown v. Buhman, 947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 14-4117 (CA10). Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of mar-riage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradi-tion, a leap from opposite-sex marriage to same-sex mar-riage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.It is striking how much of the majority’s reasoningwould apply with equal force to the claim of a fundamentalright to plural marriage. If “[t]here is dignity in the bondbetween two men or two women who seek to marry and intheir autonomy to make such profound choices,” ante, at 13, why would there be any less dignity in the bond be-tween three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowingtheir families are somehow lesser,” ante, at 15, whywouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the oppor-tunity to marry “serves to disrespect and subordinate” gayand lesbian couples, why wouldn’t the same “imposition ofthis disability,” ante, at 22, serve to disrespect and subor-dinate people who find fulfillment in polyamorous rela-tionships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000polyamorous families in the United States); Li, MarriedLesbian “Throuple” Expecting First Child, N. Y. Post, Apr.23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J.1977 (2015).I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There maywell be relevant differences that compel different legalanalysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oralargument, petitioners asserted that a State “doesn’t have such an institution.” Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either. 4 Near the end of its opinion, the majority offers perhaps the clearest insight into its decision. Expanding marriage to include same-sex couples, the majority insists, would “pose no risk of harm to themselves or third parties.” Ante, at 27. This argument again echoes Lochner, which relied on its assessment that “we think that a law like the one before us involves neither the safety, the morals northe welfare of the public, and that the interest of thepublic is not in the slightest degree affected by such anact.” 198 U. S., at 57.
Then and now, this assertion of the “harm principle”sounds more in philosophy than law. The elevation of the fullest individual self-realization over the constraints that society has expressed in law may or may not be attractivemoral philosophy. But a Justice’s commission does not confer any special moral, philosophical, or social insight sufficient to justify imposing those perceptions on fellow citizens under the pretense of “due process.” There is indeed a process due the people on issues of this sort—the democratic process. Respecting that understanding re-quires the Court to be guided by law, not any particularschool of social thought. As Judge Henry Friendly onceput it, echoing Justice Holmes’s dissent in Lochner, the Fourteenth Amendment does not enact John Stuart Mill’s On Liberty any more than it enacts Herbert Spencer’sSocial Statics. See Randolph, Before Roe v. Wade: Judge Friendly’s Draft Abortion Opinion, 29 Harv. J. L. & Pub.Pol’y 1035, 1036–1037, 1058 (2006). And it certainly does not enact any one concept of marriage.The majority’s understanding of due process lays out atantalizing vision of the future for Members of this Court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can? But this approach is dangerous for the rule of law. The purpose of insisting that implied fundamentalrights have roots in the history and tradition of our peopleis to ensure that when unelected judges strike down dem-ocratically enacted laws, they do so based on something more than their own beliefs. The Court today not onlyoverlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now. I agree with the majority that the “nature of injustice is that we may not always see it in our own times.” Ante, at 11. As petitioners put it, “times can blind.” Tr. of Oral Arg. on Question 1, at 9, 10. But to blind yourself to history is both prideful and unwise. “The past is never dead. It’s not even past.” W. Faulkner, Requiem for a Nun 92 (1951). III In addition to their due process argument, petitioners contend that the Equal Protection Clause requires their States to license and recognize same-sex marriages. The majority does not seriously engage with this claim. Its discussion is, quite frankly, difficult to follow. The central point seems to be that there is a “synergy between” the Equal Protection Clause and the Due Process Clause, and that some precedents relying on one Clause have alsorelied on the other. Ante, at 20. Absent from this portionof the opinion, however, is anything resembling our usualframework for deciding equal protection cases. It is case-book doctrine that the “modern Supreme Court’s treat-ment of equal protection claims has used a means-ends methodology in which judges ask whether the classifica-tion the government is using is sufficiently related to thegoals it is pursuing.” G. Stone, L. Seidman, C. Sunstein, M. Tushnet, & P. Karlan, Constitutional Law 453 (7th ed.2013). The majority’s approach today is different: “Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are notalways co-extensive, yet in some instances each maybe instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the twoClauses may converge in the identification and defini-tion of the right.” Ante, at 19. The majority goes on to assert in conclusory fashion thatthe Equal Protection Clause provides an alternative basis for its holding. Ante, at 22. Yet the majority fails to pro-vide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous viola-tion of the canon against unnecessarily resolving constitu-tional questions. See Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 197 (2009). In any event, the marriage laws at issue here do not violate theEqual Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate state interest” in “preserving the traditional institution of marriage.” Lawrence, 539 U. S., at 585 (O’Connor, J., concurring in judgment).It is important to note with precision which laws peti-tioners have challenged. Although they discuss some ofthe ancillary legal benefits that accompany marriage, suchas hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits targetthe laws defining marriage generally rather than those allocating benefits specifically. The equal protectionanalysis might be different, in my view, if we were con-fronted with a more focused challenge to the denial of certain tangible benefits. Of course, those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recog-nize marriages between same-sex couples. IV The legitimacy of this Court ultimately rests “upon therespect accorded to its judgments.” Republican Party of Minn. v. White, 536 U. S. 765, 793 (2002) (KENNEDY, J., concurring). That respect flows from the perception—andreality—that we exercise humility and restraint in decid-ing cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority’s telling, it is the courts, not the people, who are responsible for making “new dimensions offreedom . . . apparent to new generations,” for providing“formal discourse” on social issues, and for ensuring “neu-tral discussions, without scornful or disparaging commen-tary.” Ante, at 7–9. Nowhere is the majority’s extravagant conception ofjudicial supremacy more evident than in its description—and dismissal—of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every societyknown to have populated the planet. But on the other side, there has been “extensive litigation,” “many thought-ful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone. Ante, at 9, 10, 23. What would be the point of allowing the democratic process to go on? It is high time for the Courtto decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.” Ante, at 19. The answer is surely there in one of those amicus briefs or studies. Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right togovern themselves. They would never have imaginedyielding that right on a question of social policy to unac-countable and unelected judges. And they certainly wouldnot have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.” Ante, at 8. In our democracy,debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will. “Surely the Constitution does not put either thelegislative branch or the executive branch in the positionof a television quiz show contestant so that when a given period of time has elapsed and a problem remains unresolved by them, the federal judiciary may press a buzzerand take its turn at fashioning a solution.” Rehnquist,The Notion of a Living Constitution, 54 Texas L. Rev. 693,700 (1976). As a plurality of this Court explained just lastyear, “It is demeaning to the democratic process to pre-sume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” Schuette v. BAMN, 572 U. S. ___, ___ –___ (2014) (slip op., at 16– 17).The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it. Here and abroad, people are in the midst of a serious and thoughtful public debate on the issue of same-sex marriage. They see voters carefully considering same-sex marriage, casting ballots in favor or opposed, andsometimes changing their minds. They see political lead-ers similarly reexamining their positions, and either re-versing course or explaining adherence to old convictionsconfirmed anew. They see governments and businessesmodifying policies and practices with respect to same-sex couples, and participating actively in the civic discourse. They see countries overseas democratically acceptingprofound social change, or declining to do so. This delib-erative process is making people take seriously questions that they may not have even regarded as questions before. When decisions are reached through democratic means,some people will inevitably be disappointed with the re-sults. But those whose views do not prevail at least knowthat they have had their say, and accordingly are—in thetradition of our political culture—reconciled to the resultof a fair and honest debate. In addition, they can gear upto raise the issue later, hoping to persuade enough on thewinning side to think again. “That is exactly how oursystem of government is supposed to work.” Post, at 2–3 (SCALIA, J., dissenting).But today the Court puts a stop to all that. By deciding his question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on anissue of such profound public significance. Closing debatetends to close minds. People denied a voice are less likelyto accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enoughfor advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handedjudicial intervention was difficult to justify and appears tohave provoked, not resolved, conflict.” Ginsburg, SomeThoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985) (footnoteomitted). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth ac-knowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of changewere freshening at their backs.Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not havethe flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that mayarise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution. Amdt. 1. Respect for sincere religious conviction has led votersand legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommo-dations. The majority graciously suggests that religiousbelievers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion.Ominously, that is not a word the majority uses. Hard questions arise when people of faith exercisereligion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a reli-gious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex marriedcouples. Indeed, the Solicitor General candidly acknowl-edged that the tax exemptions of some religious institu-tions would be in question if they opposed same-sex mar-riage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majoritytoday.Perhaps the most discouraging aspect of today’s decisionis the extent to which the majority feels compelled to sullythose on the other side of the debate. The majority offers acursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. Ante, at 19. That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codify-ing the traditional definition of marriage is to “demea[n]or stigmatiz[e]” same-sex couples. Ante, at 19. The major-ity reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,”“disrespect and subordinate,” and inflict “[d]ignitarywounds” upon their gay and lesbian neighbors. Ante, at 17, 19, 22, 25. These apparent assaults on the character offairminded people will have an effect, in society and in court. See post, at 6–7 (ALITO, J., dissenting). Moreover, they are entirely gratuitous. It is one thing for the major-ity to conclude that the Constitution protects a right tosame-sex marriage; it is something else to portray every-one who does not share the majority’s “better informed understanding” as bigoted. Ante, at 19. In the face of all this, a much different view of the Court’s role is possible. That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Jus-tices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around theworld have viewed an institution in a particular way for thousands of years, the present generation and the pre-sent Court are the ones chosen to burst the bonds of that history and tradition. * * * If you are among the many Americans—of whateversexual orientation—who favor expanding same-sex mar-riage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the oppor-tunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it. I respectfully dissent.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
I join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention to this Court’s threat to American democracy. The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance
Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. 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.
I
Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to.1
Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.2 The Constitution places some constraints on self-rule—constraints adopted by the People themselves when they ratified the Constitution and its Amendments. Forbidden are laws “impairing the Obligation of Contracts,”3 denying “Full Faith and Credit” to the “public Acts” of other States,4 prohibiting the free exercise of religion,5 abridging the freedom of speech,6 infringing the right to keep and bear arms,7 authorizing unreasonable searches and seizures,8 and so forth. Aside from these limitations, those powers “reserved to the States respectively, or to thepeople”9 can be exercised as the States or the People desire. These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process? Of course not. It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today): “[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”
“[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”11 But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.12 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. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.13 That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ”14 One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”15 The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.”16 Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.17 This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judg-ment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy. Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consistsof only nine men and women, all of them successful lawyers18 who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
II
But what really astounds is the hubris reflected intoday’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.20 They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,21 cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies,stands against the Constitution.The opinion is couched in a style that is as pretentiousas its content is egotistic. It is one thing for separate con-curring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.22 Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”23 (Really? 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. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”24 (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?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.”25 (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.
* * *
Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the“least dangerous” of the federal branches because it has“neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”26 With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer tobeing reminded of our impotence.
JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.
Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage.1 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.
I
The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term “liberty” inthe Due Process Clause of the Fourteenth Amendment encompasses this right. 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. For today’s majority, it has a distinctively postmodern meaning. 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.’” Washington v. Glucksberg, 521 U. S. 701, 720–721 (1997). And it is beyond dispute that the right to same-sex marriage is not among those rights. See United States v. Windsor, 570 U. S. ___, ___ (2013) (ALITO, J., dissenting) (slip op., at 7). Indeed: “In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Courtheld in 2003 that limiting marriage to opposite-sex couples violated the State Constitution. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941. Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000. “What [those arguing in favor of a constitutional right to same sex marriage] seek, therefore, is not the protection of a deeply rooted right but the recognitionof a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. Faced with such a request, judges have cause for both caution and humility.” Id., at ___ (slip op., at 7–8) (footnote omitted). For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional pro-tection upon that right simply because they believe that it is fundamental.
II
Attempting to circumvent the problem presented by the newness of the right found in these cases, the majority claims that the issue is the right to equal treatment. Noting that marriage is a fundamental right, the majority argues that a State has no valid reason for denying that right to same-sex couples. This reasoning is dependent upon a particular understanding of the purpose of civil marriage. Although the Court expresses the point in loftier terms, its argument is that the fundamental purpose of marriage is to promote the well-being of those who choose to marry. Marriage provides emotional fulfillment and the promise of support in times of need. And by benefiting persons who choose to wed, marriage indirectly benefits society because persons who live in stable, fulfilling, and supportive relationships make better citizens. It is for these reasons, the argument goes, that States encourage and formalize marriage, confer special benefits on married persons, and also impose some special obligations. This understanding of the States’ reasons for recognizing marriage enables the majority to argue that same-sex marriage serves the States’ objectives in the same way as opposite-sex marriage. This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate. Adherents to different schools of philosophy use different terms to explain why society should formalize marriage and attach special benefits and obligations to persons who marry. Here, the States defending their adherence to the traditional understanding of marriage have explained their position using the pragmatic vocabulary that characterizes most American political discourse. Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples. If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women.2 This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage. While, for many, the attributes of marriage in 21st-century America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay. It is far beyond the outer reaches of this Court’s authority to say that a State may not adhere to the understanding of marriage that has long prevailed, not just in this country and others with similar cultural roots, but also in a great variety of countries and cultures all around the globe. As I wrote in Windsor: “The family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. 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 conse-quences. 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 same-sex 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 same-sex marriage will seriously undermine the institution of marriage. Others think that recognition of same-sex 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 same-sex marriage will be. And judges are certainly not equipped to make such an assessment. 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 the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.” 570 U. S., at ___ (dissenting opinion) (slip op., at 8–10) (citations and footnotes omitted).
III
Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. E.g., ante, at 11–13. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.
Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools. The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex mar-riage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turn-about is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds. Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims. Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation. Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.
jcdurbant 
All these newspapers used to have foreign bureaus. Now they don’t. They call us to explain to them what’s happening in Moscow and Cairo. Most of the outlets are reporting on world events from Washington. The average reporter we talk to is 27 years old, and their only reporting experience consists of being around political campaigns. That’s a sea change. They literally know nothing. (…) But then there are sort of these force multipliers. We have our compadres, I will reach out to a couple people, and you know I wouldn’t want to name them …
Ben Rhodes
In an astounding New York Times piece by David Samuels, senior White House officials gleefully confess they use friendly reporters and nonprofits as public relations tools in the selling of President Obama’s foreign policy — and can do it almost at will because these tools are ignorant, will believe what they’re told, will essentially take dictation and are happy to be used just to get the information necessary for a tweet or two. Their greatest triumph, according to Samuels, was selling a misleading narrative about the nuclear deal with Iran — the parameters of which were set a year before the administration claimed and which had nothing to do with the fact that a supposedly more accommodating government had risen to power. The mastermind of the Obama machine is Ben Rhodes, a New Yorker who joined the Obama campaign as a speechwriter in 2007 and has risen to become the most influential foreign-policy hand in the White House …
http://nypost.com/2016/05/05/playing-the-press-and-the-public-for-chumps-to-sell-the-iran-deal/
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When a White House adviser — not Rhodes — mentioned a “war room” for selling the Iran deal, a phrase that disturbed me, I went back to Rhodes and asked what it was and who ran it. He arranged for me to interview anyone I wanted. They were all candid and factual. They explained to me how they had used state-of-the-art tools and a sophisticated understanding of the way information moves in the social-media age to sell a deal that they clearly believed to be in the United States’ national interest.
But why were any of them talking to me? I soon surmised that Rhodes’s motivation in allowing me to peek behind the curtain came from a disquiet he felt at the possibility, or the likelihood, that the machinery he managed so brilliantly would soon be in the hands of his successors, who might use it to do things that he thought could be quite dangerous — like goading the United States into another pointless, bloody foreign war. Rhodes readily admitted to me that the work he does is a potentially dangerous distortion of democracy, but he also felt that it had become a necessary evil, caused by the fracturing of the 20th-century mass audience and the decline of the American press. He expressed a deep personal hopelessness about the possibility of open, rational public debate in a brutally partisan climate. But didn’t the country deserve better? I kept asking him. Over time, our conversations around this point evolved, without either of us directly mentioning it, into a kind of gentleman’s bet: My article would go as hard as I could at the truth as I saw it, The Times would publish it, and one of us would be proved right while the other would be proved wrong.
It has been fascinating for me to watch my story, which was largely read on its own terms outside of Washington and even by the White House itself, go through the looking glass of social media. The story itself has vanished, replaced by a digital mash-up of slurs and invective, supported by stray phrases that have been mechanically tweezered from different texts. The issues that Rhodes raises in my profile — about the reshaping of the media, the way American foreign policy has shifted, the way the world works now — none of these things are being discussed, either. Somehow, for a small group of people with very loud megaphones, the point right now seems to be me — or rather, a digital piñata they have slapped my name on. It seems fair to say that Rhodes won our bet.
David Samuels
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L’illusion lyrique qui durant un siècle et demi a imposé l’hégémonie intellectuelle et morale de la gauche sur la société tout entière s’est évanouie…
Entre Condorcet, Hugo, Marx et nous se dressent le sinistre portail d’Auschwitz, le froid mortel du goulag, l’ombre hallucinatoire des Khmers rouges. Notre siècle a payé pour savoir que l’idée d’un progrès moral de l’humanité imposé par l’État n’est pas seulement une utopie, mais que c’est une utopie meurtrière, la plus sanglante et la plus barbare de toutes. Certes, ce n’est pas le progrès qui est mort, nous en sommes témoins chaque jour, mais la philosophie du progrès, celle du moins qu’on a voulu en tirer, le progressisme. Que cette mésaventure en forme de cauchemar qui résume l’histoire du siècle révolu n’ait donné lieu à aucune grande entreprise de réflexion, à l’exception peut-être de Soljenitsyne, en dit long sur l’insignifiance philosophique de notre époque, son caractère le plus souvent clownesque. Ajoutons que si la justice a été dévoyée, la science ne l’a pas été moins. Le développement tumultueux des forces productives, comme on disait naguère, s’est traduit par un divorce sans précédent entre l’homme et la nature, dont le dérèglement climatique et les menaces de détérioration de la planète sont les symptômes. L’illusion lyrique qui durant un siècle et demi a imposé l’hégémonie intellectuelle et morale de la gauche sur la société tout entière s’est évanouie. (…) En face de ce progressisme social, se dresse de plus en plus une sorte de « progressisme moral », entendez de transformation des mœurs par la loi. En vérité, ce qui triomphe, c’est l’individualisme le plus exacerbé que les sociétés modernes aient jamais inventé. Le progressisme social s’appuyait sur des actions de classes et de masses. Le progressisme moral a recours à des actions culturelles, notamment dans les médias, Internet, les réseaux sociaux, visant à imposer la reconnaissance et même la prépondérance des droits des minorités, ethniques et sexuelles, affirmant bien haut leur particularisme au nom de la lutte contre les discriminations… Le chemin parcouru est immense, à la hauteur des désillusions produites par le socialisme classique. Que ce socialisme, cette doctrine communautaire, ait cédé la place à l’individualisme ; l’ère des masses à celle des minorités, l’exigence de l’unité du genre humain à sa diversité, la philosophie de l’histoire à la dénégation de passé, le prolétariat industriel à la bourgeoisie diplômée comme accoucheuse de l’Histoire, en dit long sur la mutation que vient de connaître la gauche : fin de sa gesticulation prolétaroïde et de son verbiage pseudo-marxiste. Voilà pourquoi le peuple ne se reconnaît plus en elle et le fera de moins en moins. D’où la substitution d’une sorte de morale de mouvement, de « bougisme » comme dit Pierre-André Taguieff, à la philosophie du progrès. Lisez une page d’Emmanuel Macron : la « mobilité » est le maître mot, et le remède à tous les maux. Il y a longtemps déjà que Jean-Claude Michéa dénonce le caractère mystificateur pour le peuple de cette philosophie, et encore aujourd’hui dans Notre ennemi le capital (Climats) ; que Michel Houellebecq voit dans l’obsession de la nouveauté chez les « progressistes » « une sorte d’épiphanie permanente, très hégélienne dans sa niaiserie » ; et que tout récemment Régis Debray oppose à « l’histoire progressiste le progrès rétrograde » ( Allons aux faits , Gallimard/France Culture ).
Jacques Julliard
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THE BIGGEST DANGER IS THE US PRESIDENT (Obama echo chamber man: Guess who after helping unleash ISIS and providing Iran with its nuclear bomb and Russia with a foothold in the Middle East is now warning the world of imminent Trump-orchestrated doom ?)
« What’s very clear is that he has a continued hostility towards our democratic allies, and he’s continually reaching out, praising, trying to get next to, trying to create these spectacles with people like Vladimir Putin and Kim Jong-un. I don’t think it’s possible to overstate what is happening this week. The biggest danger to the national security of the United States is the president of the United States, who is single-handedly, before our eyes, blowing up the international architecture that the United States has relied upon for our own security for 70 years. This 2% defense spending thing is just a lever that he’s using to clobber NATO. Let’s be very clear, if you shred the credibility of America’s commitment to our allies, it doesn’t matter how much people spend on defense. The fact of the matter is, by antagonizing our allies, he’s making it less likely that they’re going to stand with us the next time we need them, as they did in Afghanistan after 9/11. He’s playing right into the hands of Putin, who’s been trying to create a wedge between the United States and Europe since he came back into office. And he’s raising serious questions about whether the United States of America wants to play the role that we’ve played for 70 years as the leader of alliances like NATO. »
Ben Rhodes (former Obama national security adviser)
https://www.breitbart.com/video/2018/07/11/rhodes-the-biggest-danger-to-us-national-security-is-the-president/
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