Supreme Court Justice Antonin Scalia is speaking out against the court's decision to declare same-sex marriage a constitutional right on Friday, calling it a "threat to American democracy."
"I write separately to call attention to this Court's threat to American democracy," Scalia wrote in his dissent from the Supreme Court's 5-4 decision in Obergefell v. Hodges.
"This is a naked judicial claim to legislative-indeed, super-legislative-power; a claim fundamentally at odds with our system of government," he wrote. "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 court is beginning to create policy rather than serve as a neutral arbiter, Scalia argued.
"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," he wrote, reported The Hill.
"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."
Scalia said the majority opinion is "couched in a style that is as pretentious as its content is egotistic."
"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," he wrote.
Even though Scalia admits that the societal outcome of the decision isn't that important to him, he said he believes the opinion was an overreach by the court and criticizes the justices for being "hardly a cross-section of America."
Scalia noted that all of the justices graduated from Yale or Harvard Law School and none are evangelical Christian or Protestant, which are the religions of significant portions of the U.S. population.
"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," he wrote.
Justice Clarence Thomas also delivered a scathing rebuke of the decision, saying, "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," reported CNS News.
"In our society, marriage is not simply a governmental institution; it is a religious institution as well," Thomas said. "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."
