Alito and Thomas Dissent: ‘Constitution Does Not Guarantee Right to Enter into Same-Sex Marriage’

Shannon Quick | June 26, 2013 | 4:24pm EDT
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Justice Samuel Alito (AP)

( – Distancing themselves from the majority on the Supreme Court, Justices Samuel Alito and Clarence Thomas filed a dissenting opinion to Wednesday's Defense Against Marriage Act ruling, stating that “same-sex marriage presents a highly emotional and important question of public policy – but not a difficult question of constitutional law."

"The Constitution does not guarantee the right to enter into a same-sex marriage,” the justices wrote.

The landmark case was filed by Edith Windsor of New York, who was forced to pay taxes on an inheritance when Thea Spyer, the woman she married in Ontario, Canada, died in 2009.

Windsor was asking the court to “resolve a debate between two competing views of marriage,” the dissent reads: traditional marriage, between a man and a woman, and what the justices refer to as “consent-based” marriage defined as: “… the solemnization of mutual commitment – marked by strong emotional attachment and sexual attraction – between two persons.”

“The Constitution does not codify either of these views of marriage,” Alito writes. “The silence of the Constitution on this question should be enough to end the matter as far as the judiciary is concerned.”

Windsor asked the Supreme Court to look at DOMA through the lens of the Fifth Amendment’s due process clause. But Alito argued that the due process clause does not apply to this case.

“It is well established that any 'substantive' component to the Due Process Clause protects only those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’” Alito explains in his dissent. “It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation’s history and tradition.”

In fact, Alito points out, “No country allowed same-sex couples to marry until the Netherlands did so in 2000.”

“What Windsor and the United States seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right,” Alito writes. And because of the lack of deep-rooted history, he believes the “Justices have cause for both caution and humility.”

“Perhaps because they cannot show that same-sex marriage is a fundamental right under our Constitution, Windsor and the United States couch their arguments in equal protection terms,” Alito writes.

“In my view, the approach that Windsor and the United States advocate is misguided,” since they asked the court "to rule that the presence of two members of the opposite sex is as rationally related to marriage as white skin is to voting or a Y-chromosome is to the ability to administer an estate,” Alito maintained.

“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,” he added.

“I hope that the Court will ultimately permit the people of each State to decide this question for themselves. Unless the Court is willing to allow this occur, the whiffs of federalism in the today’s opinion of the court will soon be scattered to the wind.”


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