I respectfully dissent: matrimonio e putsch

Volendo essere apocalittico e giocoforza sintetico dico che è in atto lo scontro finale – da tanti anni preparato – tra due visioni della nostra democrazia occidentale, che è in palese cortocircuito. Campo di gioco tutto il mondo, perché se abdichiamo alla nostra storia ci consegniamo mani e piedi agli altri, alle forze del male. Non credo sia un caso che le due visioni risiedano nel ruolo del giudiziario (apposta non dico potere).

Da sempre le rivoluzioni sono volute, promosse e perseguite da minoranze aggressive contro maggioranze non aderenti ma spesso colpevolmente quiescenti. I giudici delle corti costituzionali, con tutti i distinguo del caso (alla luce dei singoli ordinamenti), oggi rappresentano questo tipo di minoranze, altamente specializzate e motivate. E particolarmente aggressive, con la deliberata volontà, cioè, di superare i limiti che la carica e i relativi compiti impongono, per imporre la propria visione in qualsiasi ambito del vivere. Si tratta di una missione che il giurista ha contribuito a modellare, a giustificare e, col tempo, per la verità breve, a far prevalere; senza accorgersi o forse accorgendosene ma non curandosi degli effetti – essendo rivolto al solo risultato concreto (ad esempio vincere la causa) – della mutazione genetica che stava alimentando: attribuendo poteri legislativi alle corti costituzionali.

Lo spartiacque, il punto di non ritorno (lo dico con grande amarezza), è costituito dalla sentenza della Supreme Court of the United States (28 aprile – 26 giugno 2015) nel caso Obergefell v. Hodges sui matrimoni tra persone dello stesso sesso. Ho letto la sentenza e ho avuto la prova che la guerra che stiamo combattendo (a tutela dei nostri principi e della nostra storia) è asimmetrica: se il più alto consesso della giustizia degli U.S.A. decide sulla base della pura emotività e dell’intimo sentire del singolo giudice, che si trasforma in distorsione e prevaricazione e se questa sentenza è applaudita entusiasticamente dal Presidente degli U.S.A. e acriticamente da gran parte dei mass media occidentali, allora vuol dire che siamo disposti con noncuranza ad abdicare alla centralità della nostra civiltà, ai principi, alle caratteristiche e soprattutto ai limiti degli ordinamenti giuridici che la rappresentano.

Le dissenting opinion dei 4 giudici che si sono opposti alla maggioranza dei 5 mostrano una preoccupazione che va oltre la normale critica. Perché questa sentenza non ha nulla di giuridico e ha tutto di politico. Se il giudice Scalia parla di Putsch evidentemente c’è una ragione, ed è semplice: per decenni siamo stati abituati a pensare che l’equilibrio di poteri nei nostri ordinamenti avesse tra gli altri scopi quello di tutelare la minoranza dall’abuso di potere della maggioranza. Tutto questo nell’agenda di oggi ha perso di significato. Oggi dobbiamo seriamente ragionare su come proteggere la maggioranza dalle incursioni delle minoranze attive che in maniera lungimirante in tutto il mondo occidentale si sono nel corso del tempo impadronite del giudiziario, in apparenza neutro, e lo tengono in ostaggio. La deriva è stata anticipata da Robert H. Bork (Il giudice sovrano, Coercing virtue: the worldwide rule of judges, Liberilibri, 2006).

È emblematico il monito del Giudice Alito: “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”.

Chi avrà voglia di leggere la sentenza e le opinioni dissenzienti nella sua interezza, ovvero il breve florilegio dei passaggi tratti dalle dissenting opinion dei giudici Roberts, Scalia, Thomas e Alito che riporto in calce, si accorgerà che non sono io a parlare con termini apocalittici.

D’altro canto il Giudice Roberts così conclude: “If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex mar­riage, 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. I respectfully dissent”.

Ancor più pesante, se possibile, la conclusione del Giudice Scalia: “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 judgment”.  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”.

E l’incipit del Giudice Thomas: “The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not enti­tlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea — captured in our Declaration of Independence — that human dignity is innate and suggests instead that it comes from the Government. This distor­tion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic.”.

Giudice ROBERTS

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

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-sex marriage have achieved considerable success persuading their fellow citizens — through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex mar­riage, making a dramatic social change that much more difficult to accept.

The majority today neglects that restrained conception of the judicial role. It seizes for itself a ques­tion the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that ques­tion. And it answers that question based not on neutral principles of constitutional law, but on its own “under­standing of what freedom is and must become.”

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.

The real question in these cases is what constitutes “marriage,” or—more precisely—who decides what constitutes “marriage”?

The majority largely ignores these questions, relegating ages of human experience with marriage to a paragraph or two.

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 a socially 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.”

In sum, the privacy cases provide no support for the majority’s position, because petitioners do not seek privacy. 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 entitlements from the State. Thus, although the right to privacy recognized by our precedents certainly plays a role in protecting the intimate conduct of same-sex couples, it provides no affirmative right to rede­fine marriage and no basis for striking down the laws at issue here.

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 mar­riage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradi­tion, a leap from opposite-sex marriage to same-sex mar­riage 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.

The majority’s understanding of due process lays out at an talizing 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 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.” 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).

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.” 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 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.” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693,700 (1976). 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.” Schuette

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 result of 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. “That is exactly how our system 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 this 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.

Hard questions arise when people of faith exercise religion 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 mar­riage. 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.

Giudice SCALIA

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.

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. 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.

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.

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.

But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that the predominant attitude of tall-building lawyers with respect to the questions presented in these cases is suggested by the fact 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 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.

Giudice THOMAS

As used in the Due Process Clauses, “liberty” most likely refers to “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” 1 W. Blackstone, Commen­taries on the Laws of England 130 (1769) (Blackstone).That definition is drawn from the historical roots of the Clauses and is consistent with our Constitution’s text and structure.

Both of the Constitution’s Due Process Clauses reach back to Magna Carta.

Even assuming that the “liberty” in those Clauses en­compasses something more than freedom from physical restraint, it would not include the types of rights claimed by the majority. In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular gov­ernmental entitlement. The founding-era understanding of liberty was heavily influenced by John Locke, whose writings “on natural rights and on the social and governmental contract” were cited “[i]n pamphlet after pamphlet” by American writers.

Whether we define “liberty” as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it. Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace.

Instead, the States have refused to grant them govern­mental entitlements. Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages—on state issued marriage licenses, death certif­icates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consor­tium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any un­derstanding of “liberty” that the Framers would have recognized.

The majority’s inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty.

Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect. The history of religious liberty in our country is familiar: Many of the earliest immigrants to America came seeking freedom to practice their religion without restraint.

In our society, marriage is not simply a governmental institution; it is a religious institution as well. Id., at 7. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.

Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Decla­ration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.

The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

Our Constitution — like the Declaration of Independence before it — was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from — not provided by — the State. Today’s decision casts that truth aside. In its haste to reach a desired result, the majority misapplies a clause focused on “due process” to afford substantive rights, disregards the most plausible understanding of the “liberty” protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society. I respectfully dissent.

Giudice ALITO

The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term “liberty” in the 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).

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.

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.

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 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.