Justice Scalia’s furious dissent in the Supreme Court case legalizing same-sex marriage exceeded his previous outbursts, not just in rhetorical flourish but in doctrinal conservatism. “When the Fourteenth Amendment was ratified in 1868, every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases,” he wrote.
Justice Scalia has long been known for originalism—the view that rights mean what they meant when the constitutional text was written. But this statement suggests that interracial marriage could be banned, and that women could again be regarded as the property of their husbands, since both were true in 1868.
Of course, Scalia also hit hard in his usual style: “The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the court to do so.... The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.)”