Obergefell v. Hodges - Part 3, Supreme Court Decision

On June 26, 2015, the Supreme Court issued its decision in the case of Obergefell v. Hodges,  576 U.S. ___ (2015). 

As expected by nearly everyone, the Court in an opinion delivered by Justice Kennedy ruled that the Constitution requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.  Also, in addition to the majority opinion, each of the Justices from the Conservative wing of the Court (Roberts, Scalia, Thomas and Alito) issued individual dissents.

In this blog, I will present the highlights from the separate opinions.

Introductory Matters

Kennedy began his opinion with the following sweeping words:

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.  The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.

He summarized the basic facts and issues before the Court:

These cases come from Michigan, Kentucky, Ohio, and Tennessee, States that define marriage as a union between one man and one woman.  The petitioners are 14 same-sex couples and two men whose same-sex partners are deceased.  The respondents are state officials responsible for enforcing the laws in question.  The petitioners claim the respondents violate the Fourteenth Amendment by denying them the right to marry or to have their marriages, lawfully performed in another State, given full recognition.

The petitioners sought certiorari.  This Court granted review, limited to two questions.  The first, presented by the cases from Michigan and Kentucky, is whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex.  The second, presented by the cases from Ohio, Tennessee, and, again, Kentucky, is whether the Fourteenth Amendment requires a State to recognize a same-sex marriage licensed and performed in a State which does grant that right.

The Court then provided the following brief history of marriage and same-sex relations, which sets the stage for his later arguments that (1) the institution is too fundamental to deprive anyone of its benefits, and (2) that marriage has changed throughout its history and will continue to change and that in its present form appropriately includes same-sex unions:

From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage.  The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life.  Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm.  Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons.  Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.  The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. 

Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together.  Confucius taught that marriage lies at the foundation of government.  This wisdom was echoed centuries later and half a world away by Cicero, who wrote, “The first bond of society is marriage; next, children; and then the family.”  There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex.

That history is the beginning of these cases.  The respondents say it should be the end as well.... 

The petitioners acknowledge this history but contend that these cases cannot end there.  Were their intent to demean the revered idea and reality of marriage, the petitioners’ claims would be of a different order.  But that is neither their purpose nor their submission.  To the contrary, it is the enduring importance of marriage that underlies the petitioners’ contentions.  This, they say, is their whole point.  Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities.  And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment....

The history of marriage is one of both continuity and change.  That institution—even as confined to opposite-sex relations—has evolved over time.  For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman.  As the role and status of women changed, the institution further evolved.  Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity.  As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned....

[These and other developments] worked deep transformations in [the institution of marriage's] structure, affecting aspects of marriage long viewed by many as essential.

These new insights have strengthened, not weakened, the institution of marriage.  Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.

This dynamic can be seen in the Nation’s experiences with the rights of gays and lesbians.  Until the mid-20th century, same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law.  For this reason, among others, many persons did not deem homosexuals to have dignity in their own distinct identity.  A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken.  Even when a greater awareness of the humanity and integrity of homosexual persons came in the period after World War II, the argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions.  Same-sex intimacy remained a crime in many States.  Gays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate.

For much of the 20th century, moreover, homosexuality was treated as an illness.  When the American Psychiatric Association published the first Diagnostic and Statistical Manual of Mental Disorders in 1952, homosexuality was classified as a mental disorder, a position adhered to until 1973.  Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.

In the late 20th century, following substantial cultural and political developments, same-sex couples began to lead more open and public lives and to establish families.  This development was followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greater tolerance.  As a result, questions about the rights of gays and lesbians soon reached the courts, where the issue could be discussed in the formal discourse of the law....

After years of litigation, legislation, referenda, and the discussions that attended these public acts, the States are now divided on the issue of same-sex marriage.

The Court details the background of five of the petitioners' cases, to illustrate "the urgency of the petitioners’ cause from their perspective.”

Petitioner James Obergefell, a plaintiff in the Ohio case, met John Arthur over two decades ago.  They fell in love and started a life together, establishing a lasting, committed relation.  In 2011, however, Arthur was diagnosed with amyotrophic lateral sclerosis, or ALS.  This debilitating disease is progressive, with no known cure.  Two years ago, Obergefell and Arthur decided tocommit to one another, resolving to marry before Arthur died.  To fulfill their mutual promise, they traveled from Ohio to Maryland, where same-sex marriage was legal.  It was difficult for Arthur to move, and so the couple were wed inside a medical transport plane as it remained on the tarmac in Baltimore.  Three months later, Arthur died.  Ohio law does not permit Obergefell to be listed as the surviving spouse on Arthur’s death certificate.  By statute, they must remain strangers even in death, a state-imposed separation Obergefell deems “hurtful for the rest of time.”  He brought suit to be shown as the surviving spouse on Arthur’s death certificate.

April DeBoer and Jayne Rowse are co-plaintiffs in the case from Michigan.  They celebrated a commitment ceremony to honor their permanent relation in 2007.  They both work as nurses, DeBoer in a neonatal unit and Rowse in an emergency unit.  In 2009, DeBoer and Rowse fostered and then adopted a baby boy.  Later that same year, they welcomed another son into their family.  The new baby, born prematurely and abandoned by his biological mother, required around-the-clock care. The next year, a baby girl with special needs joined their family.  Michigan, however, permits only opposite-sex married couples or single individuals to adopt, so each child can have only one woman as his or her legal parent.  If an emergency were to arise, schools and hospitals may treat the three children as if they had only one parent.  And, were tragedy to befall either DeBoer or Rowse, the other would have no legal rights over the children she had not been permitted to adopt.  This couple seeks relief from the continuing uncertainty their unmarried status creates in their lives.

Army Reserve Sergeant First Class Ijpe DeKoe and his partner Thomas Kostura, co-plaintiffs in the Tennessee case, fell in love.  In 2011, DeKoe received orders to deploy to Afghanistan.  Before leaving, he and Kostura married in New York.  A week later, DeKoe began his deployment, which lasted for almost a year.  When he returned, the two settled in Tennessee, where DeKoe works full-time for the Army Reserve.  Their lawful marriage is stripped from them whenever they reside in Tennessee, returning and disappearing as they travel across state lines.  DeKoe, who served this Nation to preserve the freedom the Constitution protects, must endure a substantial burden.

The cases now before the Court involve other petitioners as well, each with their own experiences.  Their stories reveal that they seek not to denigrate marriage but rather to live their lives, or honor their spouses’ memory, joined by its bond.

Legal Analysis - Two Separate Issues

The next part of the decision is the legal analysis.

The Court addresses two distinct and separate issues:  (1) does the Constitutionally protected right to marry apply to same-sex couples or only to heterosexual couples, and (2) whether the Constitution requires States to recognize same-sex marriages validly performed out of State.  Of course, the resolution of the first more or less determined the second, and the Court spends the vast majority of its opinion on the first issue.

Right to Marry - Due Process 

After dealing with preliminaries, the court got into its legal reasoning.  It based its decision in part upon the Due Process Clause of the Fourteenth Amendment, which provides that no State shall “deprive any person of life, liberty, or property, without due process of law.”  The liberties so protected “extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”

According to the Court:

The nature of injustice is that we may not always see it in our own times.  The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.  When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

The Court states that it has previously found that the right to marry is protected by the Constitution by referring to Loving v. Virginia, 388 U. S. 1 (1967), which invalidated bans on interracial unions, and Zablocki v. Redhail, 434 U. S. 374 (1978), which held that the right to marry was unconstitutionally burdened by a law prohibiting fathers who were behind on child support from marrying.

These cases the Court notes presumed relationships involving opposite-sex partners.

However, the Court then looked at four traditions and/or principles of its past jurisprudence to reach its finding that the right to marry accorded heterosexuals should apply to homosexual relationships as well.

The traditions/principles are as follows:

• The right to personal choice regarding marriage is inherent in the concept of individual autonomy.
• The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.
• The right to marry safeguards children and families and thus draws meaning from related rights of child rearing, procreation, and education.
• Marriage is a key stone of our social order.

In speaking of the "fundamental" nature of marriage, the Court says:

Choices about marriage shape an individual’s destiny.  [B]ecause “it fulfills yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.”

The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.  This is true for all persons, whatever their sexual orientation.  There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices....

Marriage remains a building block of our national community.

For that reason, just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union.  Indeed, while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities....  Valid marriage under state law is also a significant status for over a thousand provisions of federal law.  The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.

There is no difference between same- and opposite-sex couples with respect to this principle.  Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage.  This harm results in more than just material burdens.  Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives.  As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects.  It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.  Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.

Right To Marry - Equal Protection

In addition to the Due Process Clause of the Fourteenth Amendment, the Court also relied upon the Equal Protection Clause.

The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles.  Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other.  In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.  This interrelation of the two principles furthers our understanding of what freedom is and must become.

The Court’s cases touching upon the right to marry reflect this dynamic.  In Loving the Court invalidated a prohibition on interracial marriage under both the Equal Protection Clause and the Due Process Clause.  The Court first declared the prohibition invalid because of its unequal treatment of interracial couples.  It stated: “There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”  With this link to equal protection the Court proceeded to hold the prohibition offended central precepts of liberty: “To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.”  The reasons why marriage is a fundamental right became more clear and compelling from a full awareness and understanding of the hurt that resulted from laws barring interracial unions....

Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.  To take but one period, this occurred with respect to marriage in the 1970’s and 1980’s.  Notwithstanding the gradual erosion of the doctrine of coverture, invidious sex-based classifications in marriage remained common through the mid-20th century.  These classifications denied the equal dignity of men and women.  One State’s law, for example, provided in 1971 that “the husband is the head of the family and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit.”  Responding to a new awareness, the Court invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage.  

The court goes through numerous other examples of cases where the Equal Protection Clause provided insight into, as the Court said, "unjustified inequality."

This dynamic also applies to same-sex marriage.  It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.  And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry. 

These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.  The Court now holds that same-sex couples may exercise the fundamental right to marry.  No longer may this liberty be denied to them.  

Must States Recognize Same-Sex Marriages Validly Performed Out of State

According to the Court:

Being married in one State but having that valid marriage denied in another is one of “the most perplexing and distressing complication[s]” in the law of domestic relations.  Leaving the current state of affairs in place would maintain and promote instability and uncertainty.  For some couples, even an ordinary drive into a neighboring State to visit family or friends risks causing severe hardship in the event of a spouse’s hospitalization while across state lines.  In light of the fact that many States already allow same-sex marriage—and hundreds of thousands of these marriages already have occurred—the disruption caused by the recognition bans is significant and ever-growing.

As counsel for the respondents acknowledged at argument, if States are required by the Constitution to issue marriage licenses to same-sex couples, the justifications for refusing to recognize those marriages performed elsewhere are undermined.  The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States.  It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.

Miscellaneous Comments in Majority Opinion

At the end of the opinion, the Court addresses several arguments made by the appellants. 

There may be an initial inclination in these cases to proceed with caution—to await further legislation, litigation, and debate.  The respondents warn there has been insufficient democratic discourse before deciding an issue so basic as the definition of marriage.  In its ruling on the cases now before this Court, the majority opinion for the Court of Appeals made a cogent argument that it would be appropriate for the respondents’ States to await further public discussion and political measures before licensing same-sex marriages.  Yet there has been far more deliberation than this argument acknowledges.  There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings.  There has been extensive litigation instate and federal courts.  Judicial opinions addressing the issue have been informed by the contentions of parties and counsel, which, in turn, reflect the more general, societal discussion of same-sex marriage and its meaning that has occurred over the past decades.   As more than 100 amici make clear in their filings, many of the central institutions in American life—state and local governments, the military, large and small businesses,labor unions, religious organizations, law enforcement,civic groups, professional organizations, and universities—have devoted substantial attention to the question. This has led to an enhanced understanding of the issue—an understanding reflected in the arguments now presented for resolution as a matter of constitutional law.

Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.  Last Term, a plurality of this Court reaffirmed the importance of the democratic principle in Schuette v. BAMN, 572 U. S. ___ (2014), noting the “right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times.”  Indeed, it is most often through democracy that liberty is preserved and protected in our lives.  But as Schuette also said, “[t]he freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.”  Thus, when the rights of persons are violated, “the Constitution requires redress by the courts,” notwithstanding the more general value of democratic decision making.  This holds true even when protecting individual rights affects issues of the utmost importance and sensitivity.

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.  The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter.  An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.  The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”  This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”  It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process.  The issue before the Court here is the legal question whether the Constitution protects the right of same-sex couples to marry.

This is not the first time the Court has been asked to adopt a cautious approach to recognizing and protecting fundamental rights.  In Bowers, a bare majority upheld a law criminalizing same-sex intimacy.  That approach might have been viewed as a cautious endorsement of the democratic process, which had only just begun to consider the rights of gays and lesbians.  Yet, in effect, Bowers upheld state action that denied gays and lesbians a fundamental right and caused them pain and humiliation.  As evidenced by the dissents in that case, the facts and principles necessary to a correct holding were known to the Bowers Court.  That is why Lawrence held Bowers was “not correct when it was decided.” 539 U. S., at 578. Although Bowers was eventually repudiated in Lawrence, men and women were harmed in the interim, and the substantial effects of these injuries no doubt lingered long after Bowers was overruled.  Dignitary wounds cannot always be healed with the stroke of a pen.

A ruling against same-sex couples would have the same effect—and, like Bowers, would be unjustified under the Fourteenth Amendment.  The petitioners’ stories make clear the urgency of the issue they present to the Court.  James Obergefell now asks whether Ohio can erase his marriage to John Arthur for all time.  April DeBoer and Jayne Rowse now ask whether Michigan may continue to deny them the certainty and stability all mothers desire to protect their children, and for them and their children the childhood years will pass all too soon.  Ijpe DeKoe and Thomas Kostura now ask whether Tennessee can deny to one who has served this Nation the basic dignity of recognizing his New York marriage.  Properly presented with the petitioners’ cases, the Court has a duty to address these claims and answer these questions.

Indeed, faced with a disagreement among the Courts of Appeals—a disagreement that caused impermissible geographic variation in the meaning of federal law—the Court granted review to determine whether same-sex couples may exercise the right to marry.  Were the Court to uphold the challenged laws as constitutional, it would teach the Nation that these laws are in accord with our society’s most basic compact.  Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.

The respondents also argue allowing same-sex couples to wed will harm marriage as an institution by leading to fewer opposite-sex marriages. This may occur, the respondents contend, because licensing same-sex marriage severs the connection between natural procreation and marriage. That argument, however, rests on a counterintuitive view of opposite-sex couple’s decision making processes regarding marriage and parenthood. Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so.  The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe. Indeed, with respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.

The Court also addresses the argument that allowing same-sex marriage in some way demeans heterosexual marriage or that same-sex couples do not respect the institution as much as heterosexual couples:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.  In forming a marital union, two people become something greater than once they were.  As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death.  It would misunderstand these men and women to say they disrespect the idea of marriage.  Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.  Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.  They ask for equal dignity in the eyes of the law.  The Constitution grants them that right.  The judgment of the Court of Appeals for the Sixth Circuit is reversed.

Chief Justice Roberts Dissent

All judges of the conservative wing of the Court issued separate decisions, but Chief Justice Roberts dissent is the most lengthy and, I think, fairly captures all of the other Justices' objections.

Chief Justice Roberts argues in main part that the Court's decision was not based on legitimate legal analysis but rather amounted to legislating an elite social agenda from the bench.

Petitioners make strong arguments rooted in social policy and considerations of fairness.  They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples.  That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex.

But this Court is not a legislature.  Whether same-sex marriage is a good idea should be of no concern to us.Under the Constitution, judges have power to say what the law is, not what it should be.  The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” 

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not.  The fundamental right to marry does not include a right to make a State change its definition of marriage.  And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational.  In short, our Constitution does not enact any one theory of marriage.  The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage.  Many people will rejoice at this decision, and I begrudge none their celebration.  But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening.  Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view.  That ends today.  Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law.  Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

The majority’s decision is an act of will, not legal judgment.  The right it announces has no basis in the Constitution or this Court’s precedent.  The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.”  As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs.  Just who do we think we are?

It can be tempting for judges to confuse our own preferences with the requirements of the law.  But as this Court has been reminded throughout our history, the Constitution “is made for people of fundamentally differing views.”  Accordingly, “courts are not concerned with the wisdom or policy of legislation."  The majority today neglects that restrained conception of the judicial role.  It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question.  And it answers that question based not on neutral principles of constitutional law, but on its own “understanding of what freedom is and must become.”  I have no choice but to dissent.

Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples.  It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.  The Constitution leaves no doubt about the answer.

Petitioners and their amici base their arguments on the“right to marry” and the imperative of “marriage equality.”  There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally.  The real question in these cases is what constitutes “marriage,” or—more precisely—who decides what constitutes “marriage”?

The majority largely ignores these questions, relegating ages of human experience with marriage to a paragraph or two.  Even if history and precedent are not “the end” of these cases, I would not “sweep away what has so long been settled” without showing greater respect for all that preceded us.

As the majority acknowledges, marriage “has existed for millennia and across civilizations.”  For all those millennia, across all those civilizations, “marriage”referred to only one relationship: the union of a man and a woman.  As the Court explained two Terms ago, “until recent years,. . . marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” 

This universal definition of marriage as the union of a man and a woman is no historical coincidence.  Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbians.  It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship. 

The premises supporting this concept of marriage are so fundamental that they rarely require articulation.  The human race must procreate to survive.  Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways.  Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.

Society has recognized that bond as marriage.   And by bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without.  As one prominent scholar put it, “Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.”

This singular understanding of marriage has prevailed in the United States throughout our history.... 

The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with “[t]he whole subject of the domestic relations of husband and wife”.... 

This Court’s precedents have repeatedly described marriage in ways that are consistent only with its traditional meaning.... 

Here Roberts bring up Dred Scott v. Sandford, 60 U.S. 393 (1857), which is a pre-Civil War case, where the Supreme Court ruled that the petitioner Dred Scott, an escaped slave, was not a person, but rather property, so had no standing to appear in federal court and was ordered back into slavery.  The case was considered immoral and unacceptable by abolitionists and is generally regarded as being one of the causes of the Civil War.  For obvious reasons, it is universally considered the low point of Supreme Court jurisprudence.

In legal discussions, when some one wants to emphasize how disastrous a ruling is, he or she brings up Dred Scott.  However, Roberts raising the issue seems ironic here.  In Obergefell, it appears to me the majority is on the "right side of history," and it is the Chief Justice and his conservative brethren who are on the wrong side.

Roberts also brings up Lochner v. New York, 198 U.S. 45 (1905), which is another case where the Supreme Court ruled against the current of the times.  In Lochner, progressives in the New York legislature had passed laws limiting the work day to 10 hours and the work week to 60 hours.  Business owners sued, arguing that the these laws infringed upon their and their employees liberty interests to negotiate any working relationship they deemed appropriate.  The Supreme Court agreed and struck down the laws as unconstitutional.

Again, as in Dred Scott, it is ironic that the Chief Justice is pointing to this case, where an old stodgy, conservative, out-of-touch court invalidated statutes that were later to be passed and to become well-accepted parts of our lives.

Although I disagree with the Conservative wing of the Court, I acknowledge they are all intelligent people, who I have no reason to believe are bigoted, and I do not mean to imply that they are bigoted.  My point is that they are out-of-touch with the current of the times and that the majority in Obergefell is right, just as the Court in Brown v. Board of Education was right, despite all the precedent and legal arguments to the contrary.  

All the jumping up and down in the dissents are doing, one hopes, will look a little ridiculous in twenty or thirty years.

The majority purports to identify four “principles and traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry.  In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policy making that characterized discredited decisions such as Lochner v. New York, 198 U. S. 45.  Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society.  If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law....

Allowing unelected federal judges to select which unenumerated rights rank as “fundamental”—and to strike down state laws on the basis of that determination—raises obvious concerns about the judicial role.  Our precedents have accordingly insisted that judges “exercise the utmost care” in identifying implied fundamental rights, “lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.”  ...

When the majority turns to the law, it relies primarily on precedents discussing the fundamental “right to marry.”  These cases do not hold, of course, that anyone who wants to get married has a constitutional right to do so.  They instead require a State to justify barriers to marriage as that institution has always been understood....

None of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a woman...

In oral arguments, Justice Alito asked questions about incest.  Here Roberts brings up "polyamorous" relationships:

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.  If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry?  If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” why wouldn’t the same reasoning apply to a family of three or more persons raising children?  If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? 

I do not mean to equate marriage between same-sex couples with plural marriages in all respects.  There may well be relevant differences that compel different legal analysis.  But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.”  But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either....

The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policy making, what can?  But this approach is dangerous for the rule of law.  The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs.  The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now. I agree with the majority that the “nature of injustice is that we may not always see it in our own times.”  As petitioners put it, “times can blind.”  But to blind yourself to history is both prideful and unwise.  “The past is never dead. It’s not even past.” W. Faulkner, Requiem for a Nun, 92 (1951).

The legitimacy of this Court ultimately rests “upon the respect accorded to its judgments.”  That respect flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law.  The role of the Court envisioned by the majority today, however, is anything but humble or restrained.  Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority’s telling, it is the courts, not the people, who are responsible for making “new dimensions of freedom . . . apparent to new generations,” for providing“formal discourse” on social issues, and for ensuring “neutral discussions, without scornful or disparaging commentary.”  ....

Those who founded our country would not recognize the majority’s conception of the judicial role.  They after all risked their lives and fortunes for the precious right to govern themselves.  They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.  And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.”  In our democracy, debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will.  “Surely the Constitution does not put either the legislative branch or the executive branch in the position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unresolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.”  As a plurality of this Court explained just last year, “It is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” 

The Court’s accumulation of power does not occur in a vacuum.  It comes at the expense of the people.  And they know it.  Here and abroad, people are in the midst of a serious and thoughtful public debate on the issue of same-sex marriage.  They see voters carefully considering same-sex marriage, casting ballots in favor or opposed, and sometimes changing their minds.  They see political leaders similarly reexamining their positions, and either reversing course or explaining adherence to old convictions confirmed anew.  They see governments and businesses modifying policies and practices with respect to same-sex couples, and participating actively in the civic discourse.  They see countries overseas democratically accepting profound social change, or declining to do so.  This deliberative process is making people take seriously questions that they may not have even regarded as questions before.

When decisions are reached through democratic means, some people will inevitably be disappointed with the results.  But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate.  In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again. “That is exactly how our system of government is supposed to work."

Note in the following paragraph, Chief Justice Roberts cites an article by Justice Ginsburg (who voted with the majority), where she wrote that the Supreme Court by issuing decisions "too far ahead of their time" risks provoking anger and even violence, as she apparently believed had happened with Roe v. Wade.  Ginsburg has written and spoken a great deal in the past about the importance of the Court being "gradual" with its decisions.

But today the Court puts a stop to all that.  By deciding this question under the Constitution, the Court removes it from the realm of democratic decision.  There will be consequences to shutting down the political process on an issue of such profound public significance.  Closing debate tends to close minds.  People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide.  As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting.  Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”  Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985) (footnote omitted).  Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.  And they lose this just when the winds of change were freshening at their backs. 

Federal courts are blunt instruments when it comes to creating rights.  They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right.  Today’s decision, for example, creates serious questions about religious liberty.  Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution. 

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations.  The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples.  Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.  There is little doubt that these and similar questions will soon be before this Court.  Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate.  The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage.  That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n]or stigmatiz[e]” same-sex couples.  The majority reiterates such characterizations over and over.  By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,”“disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors.  These apparent assaults on the character of fair minded people will have an effect, in society and in court.  Moreover, they are entirely gratuitous.  It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted. 

In the face of all this, a much different view of the Court’s role is possible.  That view is more modest and restrained.  It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues.  It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment.  It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds.  And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.

Roberts concludes with:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision.  Celebrate the achievement of a desired goal.  Celebrate the opportunity for a new expression of commitment to a partner.  Celebrate the availability of new benefits.  But do not celebrate the Constitution.  It had nothing to do with it.  I respectfully dissent.

Justice Scalia's Dissent

Justice Scalia joined in Chief Justice Robert's decision, but wrote separately, as he says, "to call attention to this Court's threat to American democracy."

Although Scalia's points were made adequately by Roberts, I quote him at length because he is such a good writer, who (although I disagree with him) has interesting things to say and says them in interesting ways.

According to Scalia:

The substance of today’s decree is not of immense personal importance to me.  The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.

Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. 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. 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. 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.

Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best.  Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views.  Americans considered the arguments and put the question to a vote.  The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage.  Many more decided not to.  Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win.  That is exactly how our system of government is supposed to work.

The Constitution places some constraints on self-rule—constraints adopted by the People themselves when they ratified the Constitution and its Amendments.  Forbidden are laws “impairing the Obligation of Contracts,” denying “Full Faith and Credit” to the “public Acts” of other States, prohibiting the free exercise of religion, abridging the freedom of speech, infringing the right to keep and bear arms, authorizing unreasonable searches and seizures, and so forth.  Aside from these limitations, those powers “reserved to the States respectively, or to the people” can be exercised as the States or the People desire.  These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex.  Does it remove that issue from the political process?

Of course not....  

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.  When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.  We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification.  Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.

But the Court ends this debate, in an opinion lacking even a thin veneer of law.  Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,”thinks the Fourteenth Amendment ought to protect.  That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions....”  One would think that sentence would continue: “and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.”  But no.  What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”  The “we,” needless to say, is the nine of us.  “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.”  Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.  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.

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant.  Not surprisingly then, the Federal Judiciary is hardly a cross-section of America.  Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School.  Four of the nine are natives of New York City.  Eight of them grew up in east- and west-coast States.  Only one hails from the vast expanse in-between.  Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count).  Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.  The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage.  But of course the Justices in today’s majority are not voting on that basis; they say they are not. And 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.

At the end of his opinion, Scalia becomes almost mean-spirited in his sarcasm:

But what really astounds is the hubris reflected in today’s judicial Putsch.  The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.  They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not.  They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.”  These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry.  And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.

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.  Of course the opinion’s showy profundities are often profoundly incoherent.  “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.  Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.)  Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”  (Huh?  How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?)  And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.”  (What say?  What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”?  It stands for nothing whatever, except those freedoms and entitlements that this Court really likes.  And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes.  Hardly a distillation of essence.  If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.)  I could go on.  The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law.  The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.

Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall.  The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”  With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

Sarcasm in a footnote (footnote 22):

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag.  The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Justice Thomas's Dissent

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built.  Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.  The Framers created our Constitution to preserve that understanding of liberty.  Yet the majority invokes our Constitution in the name of a“liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect.  Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government.  This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic.  I cannot agree with it.

....  I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights.  It distorts the constitutional text, which guarantees only whatever “process” is “due” before a person is deprived of life, liberty, and property.  Worse, it invites judges to do exactly what the majority has done here—“‘roa[m] at large in the constitutional field’ guided only by their personal views” as to the “‘fundamental rights’” protected by that document. 

By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority.  Petitioners argue that by enshrining the traditional definition of marriage in their State Constitutions through voter-approved amendments, the States have put the issue “beyond the reach of the normal democratic process.”  But the result petitioners seek is far less democratic.  They ask nine judges on this Court to enshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normal democratic process for the entire Nation.  That a “bare majority” of this Court is able to grant this wish, wiping out with a stroke of the keyboard the results of the political process in over 30 States, based on a provision that guarantees only “due process” is but further evidence of the danger of substantive due process.

Even if the doctrine of substantive due process were somehow defensible—it is not—petitioners still would not have a claim.  To invoke the protection of the Due Process Clause at all—whether under a theory of “substantive” or“procedural” due process—a party must first identify a deprivation of “life, liberty, or property.”  The majority claims these state laws deprive petitioners of “liberty,” but the concept of “liberty” it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses.

Here, Thomas goes into the history of "due process" to include different versions of the Magna Carta, William Blackstone, and 18th century treatises.

When read in light of the history of that formulation, it is hard to see how the “liberty” protected by the Clause could be interpreted to include anything broader than freedom from physical restraint.  That was the consistent usage of the time when “liberty” was paired with “life” and “property.”  And that usage avoids rendering superfluous those protections for “life” and “property.”

If the Fifth Amendment uses “liberty” in this narrow sense, then the Fourteenth Amendment likely does as well.  Indeed, this Court has previously commented,“The conclusion is... irresistible, that when the same phrase was employed in the Fourteenth Amendment [as was used in the Fifth Amendment], it was used in the same sense and with no greater extent.”  And this Court’s earliest Fourteenth Amendment decisions appear to interpret the Clause as using “liberty” to mean freedom from physical restraint....  That the Court appears to have lost its way in more recent years does not justify deviating from the original meaning of the Clauses.

Even assuming that the “liberty” in those Clauses encompasses something more than freedom from physical restraint, it would not include the types of rights claimed by the majority. In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.

The founding-era understanding of liberty was heavily influenced by John Locke, whose writings “on natural rights and on the social and governmental contract” were cited “[i]n pamphlet after pamphlet” by American writers.... 

This philosophy permeated the 18th-century political scene in America.... 

The founding-era idea of civil liberty as natural liberty constrained by human law necessarily involved only those freedoms that existed outside of government....  

Whether we define “liberty” as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it.  Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships.  To the contrary, they have been able to cohabitate and raise their children in peace.  They have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States.  They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit.

Nor, under the broader definition, can they claim that the States have restricted their ability to go about their daily lives as they would be able to absent governmental restrictions.  Petitioners do not ask this Court to order the States to stop restricting their ability to enter same-sex relationships, to engage in intimate behavior, to make vows to their partners in public ceremonies, to engage in religious wedding ceremonies, to hold themselves out as married, or to raise children.  The States have imposed no such restrictions.  Nor have the States prevented petitioners from approximating a number of incidents of marriage through private legal means, such as wills, trusts, and powers of attorney.

Instead, the States have refused to grant them governmental entitlements. Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government.  They want, for example, to receive the State’s imprimatur on their marriages—on state issued marriage licenses, death certificates, or other official forms.  And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits.  But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers would have recognized.

To the extent that the Framers would have recognized a natural right to marriage that fell within the broader definition of liberty, it would not have included a right to governmental recognition and benefits.  Instead, it would have included a right to engage in the very same activities that petitioners have been left free to engage in—making vows, holding religious ceremonies celebrating those vows, raising children, and otherwise enjoying the society of one’s spouse—without governmental interference.  At the founding, such conduct was understood to predate government, not to flow from it. As Locke had explained many years earlier, “The first society was between man and wife, which gave beginning to that between parents and children.”  Petitioners misunderstand the institution of marriage when they say that it would “mean little” absent governmental recognition. 

Petitioners’ misconception of liberty carries over into their discussion of our precedents identifying a right to marry, not one of which has expanded the concept of “liberty” beyond the concept of negative liberty...  In none of those cases were individuals denied solely governmental recognition and benefits associated with marriage.

In a concession to petitioners’ misconception of liberty, the majority characterizes petitioners’ suit as a quest to “find . . . liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.”  But “liberty” is not lost, nor can it be found in the way petitioners seek.  As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefits.  And as a constitutional matter, it is likely even narrower than that,encompassing only freedom from physical restraint and imprisonment.  The majority’s “better informed understanding of how constitutional imperatives define... liberty,”—better informed, we must assume, than that of the people who ratified the Fourteenth Amendment—runs headlong into the reality that our Constitution is a “collection of ‘Thou shalt nots,’” not “Thou shalt provides.”

The majority’s inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty.

The majority apparently disregards the political process as a protection for liberty. Although men, in forming a civil society, “give up all the power necessary to the ends for which they unite into society, to the majority of the community,” they reserve the authority to exercise natural liberty within the bounds of laws established by that society.  To protect that liberty from arbitrary interference, they establish a process by which that society can adopt and enforce its laws.  In our country, that process is primarily representative government at the state level, with the Federal Constitution serving as a backstop for that process.  As a general matter, when the States act through their representative governments or by popular vote, the liberty of their residents is fully vindicated.  This is no less true when some residents disagree with the result; indeed, it seems difficult to imagine any law on which all residents of a State would agree.  What matters is that the process established by those who created the society has been honored.

That process has been honored here.  The definition of marriage has been the subject of heated debate in the States.  Legislatures have repeatedly taken up the matter on behalf of the People, and 35 States have put the question to the People themselves.  In 32 of those 35 States, the People have opted to retain the traditional definition of marriage.  That petitioners disagree with the result of that process does not make it any less legitimate.  Their civil liberty has been vindicated.

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. The history of religious liberty in our country is familiar: Many of the earliest immigrants to America came seeking freedom to practice their religion without restraint.  When they arrived, they created their own havens for religious practice.  Many of these havens were initially homogenous communities with established religions.  By the 1780’s, however, “America was in the wake of a great religious revival” marked by a move toward free exercise of religion.  Every State save Connecticut adopted protections for religious freedom in their State Constitutions by 1789, and, of course, the First Amendment enshrined protection for the free exercise of religion in the U. S. Constitution.  But that protection was far from the last word on religious liberty in this country, as the Federal Government and the States have reaffirmed their commitment to religious liberty by codifying protections for religious practice. 

Numerous amici—even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.”  In our society, marriage is not simply a governmental institution; it is a religious institution as well.  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.

The majority appears unmoved by that inevitability.  It makes only a weak gesture toward religious liberty in a single paragraph.  And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition.  Religious liberty is about more than just the protection for “religious organizations and persons... as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”  Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.

Although our Constitution provides some protection against such governmental restrictions on religious practices, the People have long elected to afford broader protections than this Court’s constitutional precedents mandate.  Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process.  Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.

Perhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advance the “dignity” of same-sex couples.  The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if itdid, the government would be incapable of bestowing dignity.

Human dignity has long been understood in this country to be innate.  When the Framers proclaimed in the Declaration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth.  That vision is the foundation upon which this Nation was built.

The corollary of that principle is that human dignity cannot be taken away by the government.  Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved.  Those held in internment camps did not lose their dignity because the government confined them.  And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits.  The government cannot bestow dignity, and it cannot take it away.

The majority’s musings are thus deeply misguided, but at least those musings can have no effect on the dignity of the persons the majority demeans.  Its mischaracterization of the arguments presented by the States and their amici can have no effect on the dignity of those litigants.  Its rejection of laws preserving the traditional definition of marriage can have no effect on the dignity of the people who voted for them.  Its invalidation of those laws can have no effect on the dignity of the people who continue to adhere to the traditional definition of marriage.  And its disdain for the understandings of liberty and dignity upon which this Nation was founded can have no effect on the dignity of Americans who continue to believe in them.

He concludes with the following paragraph, which summarizes he argument:

Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State.  Today’s decision casts that truth aside.  In its haste to reach a desired result, the majority misapplies a clause focused on “due process” to afford substantive rights, disregards the most plausible understanding of the “liberty” protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society.  I respectfully dissent.

Given that Thomas is the only black member of the current Supreme Court it is always interesting to see what he thinks about social justice issues.  In the following footnote (footnote 5), he takes offense to the comparison of heterosexual marriage laws to antimiscegnation laws:

The suggestion of petitioners and their amici that antimiscegenation laws are akin to laws defining marriage as between one man and one woman is both offensive and inaccurate.  “America’s earliest laws against interracial sex and marriage were spawned by slavery.”  For instance, Maryland’s 1664 law prohibiting marriages between “‘freeborne English women’” and “‘Negro Sla[v]es’” was passed as part of the very act that authorized lifelong slavery in the colony.  Virginia’s antimiscegenation laws likewise were passed in a 1691 resolution entitled “An act for suppressing outlying Slaves.”  “It was not until the Civil War threw the future of slavery into doubt that lawyers, legislators, and judges began to develop the elaborate justifications that signified the emergence of miscegenation law and made restrictions on interracial marriage the foundation of post-Civil War white supremacy.”  

Laws defining marriage as between one man and one woman do not share this sordid history.  The traditional definition of marriage has prevailed in every society that has recognized marriage throughout history.  It arose not out of a desire to shore up an invidious institution like slavery, but out of a desire “to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world.”  And it has existed in civilizations containing all manner of views on homosexuality. 

Justice Alito's Dissent

Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage.  The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them.  It does not.  The Constitution leaves that question to be decided by the people of each State.

The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term “liberty” in the Due Process Clause of the Fourteenth Amendment encompasses this right.  Our Nation was founded upon the principle that every person has the unalienable right to liberty, but liberty is a term of many meanings.  For classical liberals, it may include economic rights now limited by government regulation.  For social democrats, it may include the right to a variety of government benefits.  For today’s majority, it has a distinctively postmodern meaning.  To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “‘deeply rooted in this Nation’s history and tradition.’”  And it is beyond dispute that the right to same-sex marriage is not among those rights....

For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition.  The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.

Attempting to circumvent the problem presented by the newness of the right found in these cases, the majority claims that the issue is the right to equal treatment.  Noting that marriage is a fundamental right, the majority argues that a State has no valid reason for denying that right to same-sex couples.  This reasoning is dependent upon a particular understanding of the purpose of civil marriage.  Although the Court expresses the point in loftier terms, its argument is that the fundamental purpose of marriage is to promote the well-being of those who choose to marry.  Marriage provides emotional fulfillment and the promise of support in times of need.  And by benefiting persons who choose to wed, marriage indirectly benefits society because persons who live in stable, fulfilling, and supportive relationships make better citizens.  It is for these reasons, the argument goes, that States encourage and formalize marriage, confer special benefits on married persons, and also impose some special obligations.  This understanding of the States’ reasons for recognizing marriage enables the majority to argue that same-sex marriage serves the States’ objectives in the same way as opposite-sex marriage.

This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one.  For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.

Adherents to different schools of philosophy use different terms to explain why society should formalize marriage and attach special benefits and obligations to persons who marry.  Here, the States defending their adherence to the traditional understanding of marriage have explained their position using the pragmatic vocabulary that characterizes most American political discourse.  Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children.  They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples.

If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed.  Today, for instance, more than 40% of all children in this country are born to unmarried women.  This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage.

While, for many, the attributes of marriage in 21st century America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding.  They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay.  It is far beyond the outer reaches of this Court’s authority to say that a State may not adhere to the understanding of marriage that has long prevailed, not just in this country and others with similar cultural roots, but also in a great variety of countries and cultures all around the globe.

As I wrote in Windsor:

“The family is an ancient and universal human institution.  Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects.  Past changes in the understanding of marriage—for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage—have had far-reaching consequences.  But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time.

“We can expect something similar to take place if same-sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come.  There are those who think that allowing same-sex marriage will seriously undermine the institution of marriage. Others think that recognition of same-sex marriage will fortify a now-shaky institution.

“At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be.  And judges are certainly not equipped to make such an assessment.  The Members of this Court have the authority and the responsibility to interpret and apply the Constitution.  Thus, if the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right.  But the Constitution simply does not speak to the issue of same-sex marriage.  In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny.  Any change on a question so fundamental should be made by the people through their elected officials.” 

Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.  The decision will also have other important consequences.  It will be used to vilify Americans who are unwilling to assent to the new orthodoxy.  In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women.  The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected.  We will soon see whether this proves to be true.  I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation.  If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not.  It is also possible that some States would tie recognition to protection for conscience rights.  The majority today makes that impossible.  By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas.  Recalling the harsh treatment of gays and lesbians in the past, some may think that turn-about is fair play.  But if that sentiment prevails, the Nation will experience bitter and lasting wounds.

Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law.  If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate.  Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.

Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.  A lesson that some will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means.  I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own.  But this sincerity is cause for concern, not comfort.  What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.

Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage.  But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.