Question 1 Reading: History and Social Science Practice Test for the SAT^® exam

This passage is a collection of excerpts from the dissenting opinion written by Justice Antonin Scalia in response to the decision of the Supreme Court of the United States in the case of Obergefell v. Hodges, which found that the Constitution requires states to issue marriage licenses to same-sex sex couples.

[June 26, 2015]
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. . .

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.” $^{10}$
“[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations. . .” $^{11}$

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 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. . . 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. . .

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.

Thank you for bringing this to our attention. We have been notified and will review your report as soon as possible.