autotelic, autistic, assonance-hole©.

Scalia and the Art of Diplomatic Dissent

As many today, I am celebrating the right of the people to love and marry as their minds and hearts dictate, regardless gender.

That said, I watch all this acrimony and vitriol toward Scalia (ancillary Thomas as well) and I think those celebrating their win are missing an important and very salient point in Scalia’s dissent. Mind you, no fault to the people; Scalia has the diplomacy of a scalpel at a Brit Malih.

For my part, I read his dissent ruling literally; after all, this is how law operates (in direct opposition to how words are commonly used in public discourse). Using this lens, I find a relevant point in Scalia’s dissent; one that we, as Americans, would do well to heed despite the distasteful presentation in which it is couched.

Scalia stated,

“Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best,”

and he was correct, as this progressive look at equal marriage rights demonstrates:

By allowing the Supreme Court to decide this rather than allowing the states to continue their progression (albeit slower) to the same end, we (the people) have handed over our collective right to decide and that of our respective cities, counties, and states as well. It is a precedent that we gave them the power to make.

I suspect that for most, consideration of the argument of Federalism versus Statism versus Individualism and how law both links and constrains each in favor of the greater democracy is not a common topic of conversation…. All the more reason to take a moment and remove the context of “the cause” long enough to examine the legal impact and ramifications of HOW this ruling has occurred.

Personally, I suspect the Supreme Court was more than happy to take this up, precisely because it expands their power to adjudicate rather than deal with the pesky inconveniences of a state (and its people, via the voting process) choosing to go its own way. And, if you look at it in this light, regardless the righteousness and rightness of this particular cause, that is very much NOT a good thing.

It is unfortunate that Scalia has less tact and diplomacy than a dissent on these grounds requires. Equally so that Justice Thomas has so thoroughly failed in his dissent to reflect the salient points of Scalia’s argument in a way that “we the people” could understand as being on the point of law, not against the cause of the people.

It is true, this ruling has nudged open further the door through which the Federal Judiciary can extend past their intended boundary and exercise.

It is true as well that this ruling grants a dominance to the Federal Judiciary over the States and the people that it was neither smart nor wise to give.

Am I glad to see equal marriage rights “the law”? Yes, of course.

Am I glad that the Supreme Court “saved us all time” by doing it this way? Well, I would be if it hadn’t introduced this horrendous slight to our democracy and liberties otherwise in the process.

I think I might have preferred the states to each decide on their own rather than give up our collective right to decide for a bit of expediency on the matter.

It rather feels like we’ve give away the baby just to get rid of the bathwater; I’m not at all certain what we got was worth what we’ve given up.

This is what Scalia was directing attention to, however belligerently.

Frankly, on the matter of law and the long-term impact of this legal maneuver, he has a point.