Answer by Shulamit Widawsky:

Rather than recognizing the decision as an issue of freedom and equal rights for a set of Americans who have been grievously discriminated against, by not being allowed the right to marriage, Scalia has focused on the fact that until now, this question was handled by legislators at the state level.  Therefore, he is claiming that taking this decision away from legislators proves that such decisions are a threat to democracy.

One is left wondering if he would have said the same, when the court ruled unanimously in 1964 that they did have a right to  enact prohibitions on discrimination (see:  Heart of Atlanta Motel, Inc. v. United States (1964))

Scalia is trying to maintain that prohibiting same sex marriage is a legislative, not discrimination issue.  He is wrong.

Here is an excerpt of a key passage from Scalia’s decion:

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.

Why does Scalia feel that the same sex marriage ruling is a “threat to democracy”?

Question posted on 6/26/2015