Obergefell v. Hodges | Highlights, Reflections, and Commentary

Posted on June 26, 2015


In the quest to be well-educated on issues, to speak with an informed mind, to engage with a humble spirit, it is important to go to the original sources. Here is my original source work.

Below are excerpts from my highlights, with reflections interwoven, and concluding commentary.

2016-06-26 OBERGEFELL v HODGES, full text_Page_001


These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.

It must be conceded that dissenters are correct in their critique that this decision “changes the definition” of marriage. However, that does not seem to be the crux of the argument as changes in definition are assumed as positive aspects of a nation governed by freedom. Thus, critics must be more precise when they say the definition has “never” changed as the argument of this court, and others, is that definitions have changed over millennia and those changes have been, historically, beneficial.

The Fourteenth Amendment requires a State to license a marriage between two people of the same sex. … When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

The plea to the 14th Amendment is a stretch, as we will see in the dissent. But as we can already see, this argument is fundamentally about the Constitutionality of same-sex marriage, not its religious merits.

The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. … A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.

It could be potentially argued here that this statement also “restricts” marriage to two people, thus nullifying the “slippery slope” argument towards polygamy. Though it could also be said that the plea to “individual autonomy,” nullifies whatever strictures are being instituted.

A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. … The marriage laws at issue thus harm and humiliate the children of same-sex couples.

This is a hard line of argumentation as the protection of the family, namely safeguarding the children, some would argue is a consequence of such judgments but not a rationale for such judgments. In other words, in accordance with definitions, there are no “children of same-sex couples,” recognized by some states under current laws, thus nullifying the need to “protect.”

Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. … It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage.


The right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection.

Thusly argued.

While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right.

And here is the rub. The fundamental argument here is that there is “harm” involved in waiting for the democratic process. The “harm” is the inability for someone to exercise their fundamental rights.

The Fourteenth Amendment requires States to recognize same-sex marriages validly performed out of State. Since same-sex couples may now exercise the fundamental right to marry in all States, 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.

A bit redundant, but necessary legalese, I suppose.

Opinion of the Court – Justice Kennedy

This Court granted review, limited to two questions. … The first, …is whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex. The second… 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 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.

Some have commented on this phrase as being quite beautiful and moving. Perhaps. But what does “beautiful and moving” have to do with Constitutional rights? In addition, the conflation of state and religion here has not been met with the kind of concern that may perhaps be warranted.

One question not discussed much is why a secular institution (the “state”) has authority over a religious institution (“marriage”)? No doubt there is much history behind this coupling. However, it may be a bit of religious and political ironic tragedy that as religious institutions attempted to block marriage at the state level, they have unknowingly permitted the state to therefore make declarations upon the institution of marriage that may not be warranted, given the “separation of church and state,” philosophies in our country. This is not even mentioned in the dissenting opinions.

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.

As we will see from the dissent, the word “need” is going to be subject to much scrutiny.

The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time.


These new insights have strengthened, not weakened, the institution of marriage.

So argued. Such is the case of coverture laws and anti-miscegenation laws in recent American history.

Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.

The DSM removed “homosexuality” from its list of mental illnesses in 1973. In 2013, the APA published this statement on homosexuality.

With the exception of the opinion here under review and one other, see Citizens for Equal Protection v. Bruning, 455 F. 3d 859, 864–868 (CA8 2006), the Courts of Appeals have held that excluding same-sex couples from marriage violates the Constitution.

So argued.

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.

So argued, as above.

A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.

So argued.

Choices about marriage shape an individual’s destiny. As the Supreme Judicial Court of Massachusetts has explained, because “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.” Goodridge, 440 Mass., at 322, 798 N. E. 2d, at 955.

So argued.

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.

As Scalia will take this to task later, since when was “expression, intimacy, and spirituality” considered “freedoms” under our constitution?

A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.

Again, is this a recognized “secular” or “religious” institution?

Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.

This is perhaps quite inappropriate in a paper that is deciding and contemplating constitutional jurisprudence. It is weak, argumentatively, and sloppy sentimentality. Does this really belong in this kind of legal opinion?

A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of child rearing, procreation, and education.

So argued.

By giving recognition and legal structure to their parents’ relationship, marriage allows children “to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Windsor, supra, at ___ (slip op., at 23).

Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples. See Windsor, supra, at ___ (slip op., at 23).

“Stigma” and “humiliation,” are difficult Constitutional rights to substantiate. The dissenter’s opinion is hereby duly noted on elements such as this.

These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules.

Unlike the other sentiments, this list is an appropriate depiction of the “harms” done to married couples who are not recognized across state boundaries. It is here that the strength of the argument lies, and here that the opinion of the court should have placed its strongest rhetoric…(IMHO).

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.

So argued.

The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.

So argued.

The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.

This is an argument that should be contended with. “Not from ancient sources alone,” is a plea to the progressive state of understanding and, in religious circles, “revelation.” This is fundamentally an expression of the brilliance of our Constitution, its flexibility into the future as we reach “better informed understanding[s].”

Conversely, though they write “decent and honorable religious or philosophical premises” are not “disparaged here,” it is clear that there is a strong populace to whom this directly communicates a deprecating, or trivialization of a very sacred institution. It will be a daunting challenge for both the religious and the secular to come to some sort of understanding of each others’ respect and regard for one another, especially as that esteem is tied up in decisions and opinions which are not easily divorced from personal feelings. There is hope, as there are many religious leaders who recognize the secular nature of our government and believe it should be kept sacred as a divine blessing for both entities. But that peace will come at the cost of deeply held convictions.

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.” Ga. Code Ann. §53–501 (1935). Responding to a new awareness, the Court invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage.


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.

So argued.

Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. … “[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.” Id., at ___ (slip op., at 15). 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, as mentioned, is the crux of the argument. The Supreme Court ruled, 5-4, that democracy is not the appropriate process for change because the continued evaluation of same-sex relationships as illicit violates Constitutional rights. The dissenters, of course, disagree.

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.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943). This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” Ibid. 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.

Perhaps this should have been more clearly summarized and expounded upon at the front of the opinions. Nevertheless, it is so stated here.

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 counter intuitive 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. See Kitchen v. Herbert, 755 F. 3d 1193, 1223 (CA10 2014) (“[I]t is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of opposite-sex couples”).

Not only is this so argued, it addresses the weakest aspects of the defense.

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.

So the question that the dissenters are going to ask is that while this paragraph seeks to protect the “teachings,” does this decision violate their Constitutional right to “free exercise thereof?” Pizza shops, photographers, and cake makers are testing this proposition.

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.

* * *

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.

It is so ordered.

Dissent – Justice Roberts

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.”

It is important to note that Justice Roberts is not arguing the issue of “same-sex marriage,” per se, but is rather opinionated on the Court’s permissions, as he will expound upon below.

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.

And the driving argument, leave it to the States.

It can be tempting for judges to confuse our own preferences with the requirements of the law.

This should be an appreciated line by everyone who cares about our legal system.

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.

So argued.

The real question in these cases is what constitutes “marriage,” or—more precisely—who decides what constitutes “marriage”?

“Who,” not “what.”

The majority largely ignores these questions, relegating ages of human experience with marriage to a paragraph or two.

It seems as if the “who” of the definition of marriage was not addressed in the depth that Justice Roberts wants, because, as he mentions, that is not the sole driving question. It is “where,” does the rights of marriage fall? Constitution, or the Republic?

For all those millennia, across all those civilizations, “marriage” referred to only one relationship: the union of a man and a woman.

Not true. In addition, Justice Roberts laid out his main argument that is more about the courts than it is about marriage, and then continues to discuss the history of marriage. Perplexing.

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.

But this has been addressed several times. In addition, this argument is more against divorce than it is against same-sex marriage.

1 An American Dictionary of the English Language (1828). An influential 19th-century treatise defined marriage as “a civil status, existing in one man and one woman legally united for life for those civil and social purposes which are based in the distinction of sex.”

It seems a bit weak to quote a dictionary from the 1820s as an argument for the 21st century. Especially given the “coverture” definitions that have existed.

The majority may be right that the “history of marriage is one of both continuity and change,” but the core meaning of marriage has endured. Ante, at 6.

But this feels like splitting hairs.

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.

This feels a bit snarky, and seems to misrepresent the majority’s actual opinion.

They argue instead that the laws violate a right implied by the Fourteenth Amendment’s requirement that “liberty” may not be deprived without “due process of 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.

So argued.

In a dissent that has outlasted the majority opinion, Justice Curtis explained that when the “fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical opinions of individuals are allowed to control” the Constitution’s meaning, “we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.” Id., at 621.

Absolutely fascinating, for this is the exact same argument found in the fundamentalists defense of the Bible.

The majority’s driving themes are that marriage is desirable and petitioners desire it. The opinion describes the “transcendent importance” of marriage and repeatedly insists that petitioners do not seek to “demean,” “devalue,”“denigrate,” or “disrespect” the institution. Ante, at 3, 4, 6, 28. Nobody disputes those points. Indeed, the compelling personal accounts of petitioners and others like them are likely a primary reason why many Americans have changed their minds about whether same-sex couples should be allowed to marry. As a matter of constitutional law, however, the sincerity of petitioners’ wishes is not relevant.

When the majority turns to the law, it relies primarily on precedents discussing the fundamental “right to marry.” Turner v. Safley, 482 U. S. 78, 95 (1987); Zablocki, 434 U. S., at 383; see Loving, 388 U. S., at 12. 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.

If that is an agreed upon definition, and second, if a State justifies barriers that are unconstitutional, is that not reason for the Supreme Court to step in?

Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases “presumed a relationship involving opposite-sex partners.”

In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here.

But, neither is removing gender barriers changing what “marriage,” is.

Unlike criminal laws banning contraceptives and sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit. No one is “condemned to live in loneliness” by the laws challenged in these cases—no one. Ante, at 28. At the same time, the laws in no way interfere with the “right to be let alone.”

But they do interfere with the aforementioned marital benefits of taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules. (p.22)

Our cases have consistently refused to allow litigants to convert the shield provided by constitutional liberties into a sword to demand positive entitlements from the State. See DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189, 196 (1989); San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 35–37 (1973); post, at 9–13 (THOMAS, J., dissenting). Thus, although the right to privacy recognized by our precedents certainly plays a role in protecting the intimate conduct of same-sex couples, it provides no affirmative right to redefine marriage and no basis for striking down the laws at issue here.

Point, the right to privacy does not seem to be a driving thrust of the majority’s opinion. It is slightly perplexing that Roberts includes the assumption that the majority’s opinion is a “redefinition” of marriage.

The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” Ante, at 19. Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences adopted in Lochner.

This seems to be a gross misrepresentation of the majority’s opinion.

Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.

The slippery slope argument has made its way into the Supreme Court dissent. Roberts offers no substantive rational for the differential of this “leap.”

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,” ante, at 13, 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,” ante, at 15, 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,” ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?

This section is double-edged. First, it illuminates the weaknesses or “slippery” implications of the majority’s rationale. However, it is also somewhat false arguing, for the “definition,” can still be maintained at “two people,” should the government wish to do so. After all, is not this the whole point of the enterprise?

Then and now, this assertion of the “harm principle” sounds more in philosophy than law. The elevation of the fullest individual self-realization over the constraints that society has expressed in law may or may not be attractive moral philosophy. But a Justice’s commission does not confer any special moral, philosophical, or social insight sufficient to justify imposing those perceptions on fellow citizens under the pretense of “due process.” There is indeed a process due the people on issues of this sort—the democratic process.

First, philosophy plays a significant part in jurisprudence, so relegating an argument to philosophy is both inaccurate and hypocritical. Is not Roberts engaging in similar philosophy? Second, we see again the strength and thrust of the argument, that this decision should not be decided by the courts, but rather by the democratic process. So argued.

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.

But the whole point of our constitutional process, including the judicial branch, is that social institutions are flexible, malleable to the changes of society? I also don’t believe the statement, “preferring to live only in the heady days of the here and now,” are accurate the full scope of the argument.

It is important to note with precision which laws petitioners have challenged. Although they discuss some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically.

But what is the difference? How can those be separated?

Over and over, the majority exalts the role of the judiciary in delivering social change.

“Delivering,” may not be as accurate as “sanctioning.” In other words, the judiciary is not a catalyst of social change, but an arbiter of what social change is constitutional or not.

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. … 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.” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693,700 (1976).

Would be humorous if the stakes weren’t significantly personal.

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.” Post, at 2–3 (SCALIA, J., dissenting).

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.

This whole paragraph is ironic, because the line of reasoning would perhaps be argued by the other side, especially with phrases like “shutting down the political process,” and “closing debate.” In addition, the last line, bolded, is quite the mixed bag of sentiments. Roberts seems to be lamenting the loss of “opportunity,” which is nice, but seems to be unfounded (as the “winds of change” continue to blow). Second, “true acceptance” will come regardless of legal strictures or permissions. That, of course, is how we got here in the first place.

The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

This is, in my opinion, one of the most difficult, challenging, and important matters of this debate. What does “the free exercise thereof,” entail?

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. See Tr. of Oral Arg. on Question 1, at 36–38. 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. … 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. Ante, at 17, 19, 22, 25. 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.

While this sentiment is deeply felt, I’m not sure it accurately describes the majority’s statements. In fact, the word “bigot” is only used by the dissenters, not by the majority.

* * *

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.

The irony of this statement is telling. “Celebrate the availability of new benefits.” Concurrent with the majority’s opinion, isn’t that the point of the Constitution, and the fourteenth amendment? “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Dissent – Justice Scalia

I join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.


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. … 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.

While I understand the point, the converse point is, What if the freedom to govern themselves results in the oppression of others? Isn’t that the point of a Supreme Court?

Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best.

This is a bit hyperbolic. There are thousands of other real issues, economic, educational, commerce, international relationships, taxes, etc., that perhaps display the very “best” of American democracy. The same-sex debate, some would argue, displayed American bigotry, bias, and religion at its worst.

“[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”

“[T]he Federal Government, through our history, has deferred to [United States v. Windsor, 570 U. S ___, ___ (2013) (slip op., at 16) (internal quotation marks and citation omitted).


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.

This seems patently untrue. The whole point of having a judicial system is precisely that the States are not free “to adopt whatever laws they like.” Laws that violate the Constitutional rights of others are not permitted, and when a democracy overreaches, then the it is the Supreme Court’s responsibility, nay, obligation, to overturn such laws.

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 Americans19), 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.

Double-edged sword. Yes, the backgrounds of the judges ought to be irrelevant, as those appointed to said benches are supposed to be “blind,” as justice is supposed to go. However, yes, the reality is that backgrounds do matter, and all people, including judges are susceptible to bias.

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.)

This is poignant, as well as humorous. Scalia’s quip should actually be taken seriously, as he does point out a weakness in the majority’s position.

* * *

Hubris is sometimes defined as o’er weening 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.

A different kind of “slippery slope,” interestingly. I don’t know how you separate “based on law” and “reasoned judgment.” That feels like a contradiction. The whole point of justices is that one is making reasoned judgment based on law.

Dissent – Justice Thomas

Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.

I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights. McDonald v. Chicago, 561 U. S. 742, 811–812 (2010) (THOMAS, J., concurring in part and concurring in judgment). It distorts the constitutional text, which guarantees only whatever “process” is “due” before a person is deprived of life, liberty, and property. U. S. Const., Amdt. 14, §1. 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. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 953, 965 (1992) (Rehnquist, C. J., concurring injudgment in part and dissenting in part) (quoting Griswold v. Connecticut, 381 U. S. 479, 502 (1965) (Harlan, J.,concurring in judgment)).

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.


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.

I find this an intriguing philosophical foundation. Would DOMA be considered a “governmental action” or a “governmental entitlement?”

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.

But the petitioners, and others, have been denied access to other “benefits,” including financial benefits, health care visitations, adoption rights, etc., because of the marriage laws. This paragraph seems to completely miss the swath of reality that are faced by same-sex couples.

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.

But when those marriages are not recognized by other States…?

But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers would have recognized.


[footnote 5] 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.


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.

This is persuasive, and a conservative philosophy that many would do well to consider. The “slippery slope” is no longer about “who is allowed to marry who,” but “what government is allowed to permit or restrict.” This is a good question, and one that should characterize our national debate.

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.

“Likely” is speculative. The argument, of course, is that this is no infringement upon other people’s rights.

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. Brief for Respondents in No. 14–571, pp. 1a– 7a. That petitioners disagree with the result of that process does not make it any less legitimate. Their civil liberty has been vindicated.


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.

But the problem is that religious liberty is a national issue, Constitutionally.

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.

Yes. Amen! (?)

The government cannot bestow dignity, and it cannot take it away.

I actually love this line from Thomas. It’s quite deep, actually, and should be considered in the kinds of arguments we make around what is or is not permissible, Constitutionally. However, the argument/inquiry emerges, What is the responsibility of a citizenry, when the people want to take dignity away? Does government have the responsibility to protect it?

Dissent – Justice Alito

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.” 570 U. S., at ___ (dissenting opinion) (slip op., at 8–10)(citations and footnotes omitted).


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.

Well, according to the dissenting arguments, this is fully permissible by the Constitution.

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.

Yes, as so argued before.

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.

— VIA —

And so it is concluded, on a 5-4 vote, that same-sex marriage is legal in all 50 States of our Union, with all the rights and privileges thereof. Arguably the most significant Supreme Court decision from a religious standpoint since Roe v. Wade. Whether we celebrate or lament, this decision, as with all others, raises more dilemmas rather than satisfies inquiries. What about the “free exercise thereof” regarding religion? Is there a “judicial slippery slope” regarding what our government can or cannot permit? If our founding fathers could not have envisioned today’s modern debate, what other issues are starting to stretch the reach of our Constitution?

I have been wrestling with a question for a while on this that I believe is quite apropos. From Joel Barker’s book, Paradigms, he asks, “What is impossible to do, but if it could be done, would fundamentally change [everything]?” Regarding this issue and the fragmentation that is happening in the Christian Church, I ask, “Could we, with our deeply held convictions, no matter how radically disparate and conflicting they may be, be both committed to those beliefs, and still be One Church? Could we still love, even in this?” If that could be done, that would, perhaps, fundamentally change everything.