Commentators have missed the real significance of Justice Antonin Scalia’s dissent in the gay marriage case. He calls the decision a judicial “Putsch,” an attempt to overthrow a form of government—ours. His dissent, joined by Justice Clarence Thomas, was written “to call attention to this Court’s threat to American democracy.”
His comment about the Court using the kind of reasoning we find in a fortune cookie is a funny line. But there is much of the Scalia dissent that is not funny and which serves as a warning to the American people about what the Court has done to us.
Scalia understands the power and meaning of words and he chose the word “putsch” for a specific purpose. One definition of the term means “a secretly plotted and suddenly executed attempt to overthrow a government…” Another definition is “a plotted revolt or attempt to overthrow a government, especially one that depends upon suddenness and speed.”
Hence, Scalia is saying this was not only a blatant power grab and the creation of a “right” that does not exist, but a decision that depends on public ignorance about what is really taking place. It is our system of checks and balances and self-rule that has been undermined, he says.
In that sense, he is warning us that we need to understand the real significance of this decision, and go beyond all the commentators talking about “marriage equality” and “equal rights” for homosexuals. In effect, he is saying that the decision is really not about gay rights, but about the future of our constitutional republic, and the ability of the people to govern themselves rather than be governed by an elite panel making up laws and rights as they go.
Scalia’s dissent cannot be understood by listening to summaries made by commentators who probably didn’t read it. Although I may be accused of exaggerating the import of his dissent, my conclusion is that he is calling for nothing less than the American people to understand that a judicial dictatorship has emerged in this country and that its power must be addressed, checked, and overruled.
