Alan Keyes
Scalia's Windsor dissent: Deficient in principle?
By Alan Keyes
July 4, 2013

"The right defence against false sentiments is to inculcate just sentiments." (C.S. Lewis, The Abolition of Man)

Justice Antonin Scalia's dissent in the Windsor case reminds me of a skilled tennis player locked in a longstanding competition with an outstanding rival. He delivers superb performances that win cheers and respect from the crowd, but at the most crucial moments (e.g., when they meet in the finals of a Grand Slam event), he ends up losing because something about his style of play cedes his normally decisive advantage to his nemesis.

In what might have been an historic dissenting opinion in United States v. Windsor, Justice Scalia conclusively proves that the opinion of the Supreme Court's majority is a biased and irrational diatribe. But to fulfill the great promise of his dissent, he needed to place their prejudiced tirade in a setting that makes plain the willful nature of their judicial malfeasance. He needed to present the well-reasoned, logical construction of the Constitution that would show up their behavior for what it is: the utter refusal to fulfill their oath to support and defend the Constitution. Instead, as I noted at the beginning of my last post, he falsely asserts the Constitution's neutrality on the issue of marriage. He thus tacitly validates the majority's specious allegation that Congress acted from malice toward a particular mode of sexual conduct. In fact, it acted to assure respect for the unalienable rights of those individuals willing to fulfill their natural obligation to propagate humanity. According to the organic law of the United States, such unalienable rights are endowed by the Creator. They are therefore antecedent to all government except that of the "laws of nature and of nature's God." On this account they are called "unalienable" because, being inseparable from human nature, an individual's claim to right is not granted, nor can it justly be taken away, by human fiat.

As I have more fully discussed elsewhere, the antecedent rights of the natural family, endowed by the Creator, must be among the rights not enumerated in the Constitution, yet retained by the people. The 9th Amendment forbids the U.S. government (and therefore any court acting under its auspices) to "deny or disparage these unalienable rights." Can there be any greater disparagement of the rights of the natural family than to take the term used to designate and institutionalize the relationship that is fundamental to its nature and apply it to personal relations in no way connected with the natural obligation to propagate humanity, from which those rights are derived?

The advocates of slavery in the United States often attempted to justify that institution by denying black people their share in human nature. On this account, they pretended that the notion of unalienable rights did not apply to black people, and that they therefore had no rights government was obliged to respect and secure. In like fashion, the advocates of homosexual so-called marriage now seek to deny the nature of marriage. They do so on the excuse of promoting equal treatment for homosexuals. But the necessary and intended result of their advocacy is to deny the family's functional claim to be an expression of human nature, indeed the primordial expression of its social aspect. This, in turn, allows them to deny that the individuals who make up the family are engaged in an exercise of right, according to the laws of nature and of nature's God. Once this is successfully denied, the activities arising from their exercise of right need no longer be respected as unalienable rights, antecedent to all human governments, which it is government's aim to secure.

In what amounts to an effort to overturn the whole idea of unalienable rights that gives rise to constitutional self-government, some elements of America's judiciary have moved to proclaim as law that marriage must be redefined in a way that accommodates homosexual relationships. But this means that a human relationship in no way rooted in the Creator's provision for our nature must be allowed to usurp the name, authority, and rights of the God-endowed institution.

That institution naturally arises in and from the human relationship that reciprocally defines man and woman respectively, in terms of the specific difference constituted of, by, and for the perpetuation of humanity as such. Once the authority of the natural law is thus denied, the family and everything connected with it ceases to be the locus for any claim of unalienable right. Such rights must be rooted in the Creator's endowment of our nature. Otherwise they are not unalienable, but entirely subject to arbitrary determinations of human will.

Once this effect upon the unalienable rights of the natural family is understood, it becomes clear that the Constitution is not neutral with respect to the approval or disapproval of same-sex marriage, in the name of law. There is an explicit constitutional prohibition against denying or disparaging rights unenumerated in the Constitution but retained by the people. Since the unalienable rights of the family arise from the individual's commitment to fulfill the natural law by propagating humanity, they are certainly among these unenumerated rights. Therefore, Congress simply did its duty, in accordance with the 9th Amendment, when it moved to prevent the denial and disparagement of the rights of the natural family by judges and justices seeking to replace the natural family with a tyrannically defined fabrication.

Why did Justice Scalia fail to take note of this constitutional justification for DOMA, utterly ignored by the Windsor majority? Why, instead, did he pretend that the issue involved can simply be decided by majority vote of the people in their respective states, as if the human sovereignty that constitutes government, at any level, has authority to override right and justice as endowed by the Creator? In this respect, neither the Windsor majority nor Justice Scalia's dissent shows any respect for the premises that informed the deliberations of the Framers of the U.S. Constitution. Yet without those premises, the declared purposes and essential features of the constitution they devised cannot be properly understood. In my next post, I begin to examine the cause and grave consequences of this purposeful abandonment of America's founding principles.
To see more articles by Dr. Keyes, visit his blog at and his commentary at and

© Alan Keyes


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Alan Keyes

Dr. Keyes holds the distinction of being the only person ever to run against Barack Obama in a truly contested election – featuring authentic moral conservatism vs. progressive liberalism – when they challenged each other for the open U.S. Senate seat from Illinois in 2004... (more)


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