UCLA POLI 157 – CJ Roberts and J Scalia in the Obergefell

at 600 words. 

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We reviewed and discussed the dissenting opinions by CJ Roberts and J Scalia in the Obergefell decision. Each offered their views on why the majority was misreading the Constitution and, in the process of doing so, unjustifiably expanding the role of the judiciary branch in a way that was counter to constitutional design and the clear intent of the framers. Whether you agree or disagree with Roberts’ and Scalia’s views on the matter, there is no doubt that they make compelling arguments grounded in reason and, arguably, a legitimate interpretation of the constitution and the function of the judiciary — though one that happens to differ drastically from the majority. In other words, there is a way to read their dissenting opinions that is detached from whatever might be their own personal views on homosexuality.

Obergefell, as we know, was decided by the narrowest of margins: 5 to 4. The other case we discussed, Loving v. Virginia, was the direct opposite and featured a unanimous nine-justice verdict. But what if Loving had not been unanimous? What would a Roberts- or Scalia-style dissent in that case have looked like? That is your assignment for this week: within the allotted word count, write an overview of the arguments that Roberts or Scalia would have made had they been asked to decide that case.

To be clear, I’m aware that I’m asking you to write a defense of an outcome that you may find odious and morally reprehensible. I get that. It won’t be easy, and will most probably be uncomfortable for many of you. But there is a way to defend it without adopting a racist mindset, just like Roberts and Scalia were able to argue against the majority position in Obergefell without sounding like outright homophobes. The exercise here is learning how to assume and write a legally-grounded argument in favor of a particular interpretation of the Constitution (i.e., originalism and/or textualism) premised on the principle of judicial restraint. What would that argument look like?

Keep in mind the following: it’s not the outcome of Loving that, in this exercise, you should have an issue with, but the process that led to it. It’s the journey, not the destination, that you are critiquing.

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