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| 14-556 Obergefell v. Hodges (06/26/2015) |
I think it is
very important for each of us to read the Supreme Court's opinion and all the dissents in full so that we all know what we're talking about. I've gone through the document which was provided and
which can be downloaded here and pulled all of the case law citations and a lot of the footnotes for ease in reading. If you've never read legal documents like this before, just do it, go through it ... you'll be surprised how "readable" it is, you'll find it illuminating (and sometimes hilarious and oftentimes frustrating) and at the end of it You'll Know and you will be able to carry on an enlightened conversation. There are AYE LOT of inflammatory things said, on both sides ... sit down and read it, know your history. This is some life-altering, world-changing stuff here.
The Fourteenth Amendment to the Constitution of the United States is cited in the decision, so I've provided that text at the top of this post. I've also linked to
Matt Baume's
YouTube Channel ... Learn it. Live it. Know it. He's GREAT at summarizing The Truth with Quotes and Everything.
P.S.: Emphasis is all mine. Bold and Italic means I think it's beautiful. Underlined is mostly stuff I can't believe is there. Ellipses ... appear where I've redacted case law citations.
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TERRIFIC
videos by Matt Baume: Watch Best Lines from
the Ruling, Debunking the Dissents, What you Need to Know, Results, Why
Opinion Changed So Fast, and Definition of "Traditional Marriage"
... For a treat, wind up with "Does Gay Marriage Lead to Polygamy"
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AMENDMENT XIV
Passed by Congress June 13, 1866. Ratified July 9, 1868.
Section 1. All
persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. 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.
… Section 5. The
Congress shall have power to enforce, by appropriate legislation, the
provisions of this article.
* * * * *
JUSTICE KENNEDY delivered
the opinion of the Court…:
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…
II
…Before addressing the
principles and precedents that govern these cases, it is appropriate to note
the history of the subject now before the Court.
A
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…
That history is the beginning
of these cases. The respondents say it should be the end as well. To them, it
would demean a timeless institution if the concept and lawful status of
marriage were extended to two persons of the same sex. Marriage, in their view,
is by its nature a genderdifferentiated union of man and woman. This view long
has been held—and continues to be held—in good faith by reasonable and sincere
people here and throughout the world.
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…
B
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.
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
centuriesold doctrine of coverture, a
married man and woman were treated by the State as a single, maledominated
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 in the institution of marriage
over the past centuries were not mere superficial changes. Rather, they worked
deep transformations in its 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
mid20th 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…
III
Under
the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any
person of life, liberty, or property, without due process of law.”
The fundamental liberties protected by this Clause include most of the rights
enumerated in the Bill of Rights…In addition these liberties extend to certain
personal choices central to individual dignity and autonomy,
including intimate choices that define personal identity and beliefs…
The identification and
protection of fundamental rights is an enduring part of the judicial duty to
interpret the Constitution. That responsibility, however, “has not been reduced
to any formula”…Rather, it requires courts to exercise reasoned judgment in identifying
interests of the person so fundamental
that the State must accord them its respect…That process is guided by many of
the same considerations relevant to analysis of other constitutional provisions
that set forth broad principles rather than specific requirements. History and
tradition guide and discipline this inquiry but do not set its outer
boundaries…That method respects our history and learns
from it without allowing the past alone to rule the present.
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.
Applying these
established tenets, the Court has long held the right to marry is protected by
the Constitution. In Loving v.
Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions,
a unanimous Court held marriage is “one of the vital personal rights essential
to the orderly pursuit of happiness by free men”…
It cannot be denied that
this Court’s cases describing the right to marry presumed a relationship
involving opposite-sex partners. The Court, like many
institutions, has made assumptions defined by the world and time of which it is
a part. …
Still, there are other,
more instructive precedents. This Court’s cases have expressed constitutional
principles of broader reach. In defining the right to marry these cases have
identified essential attributes of that right based in history, tradition, and
other constitutional liberties inherent in this intimate bond…And in assessing
whether the force and rationale of its cases apply to same-sex couples, the
Court must respect the basic reasons why the right to marry has been long protected…
This analysis compels the
conclusion that same-sex couples may exercise the right to marry. The four xprinciples and
traditions to be discussed demonstrate that the reasons marriage is fundamental
under the Constitution apply with equal force to same-sex couples.
u
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. This abiding connection between marriage and
liberty is why Loving invalidated interracial
marriage bans under the Due Process Clause…Like choices concerning
contraception, family relationships, procreation, and childrearing, all of
which are protected by the Constitution, decisions concerning marriage are
among the most intimate that an individual can make…Indeed,
the Court has noted it would be contradictory “to recognize a right of privacy
with respect to other matters of family life and not with respect to the
decision to enter the relationship that is the foundation of the family in our
society.”
Choices about marriage
shape an individual’s destiny. As the Supreme Judicial Court of Massachusetts
has explained, because “it fulfils 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 selfdefinition”…
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…(“[T]he freedom to marry, or not marry, a person of another race
resides with the individual and cannot be infringed by the State”).
v
A second principle in this Court’s jurisprudence is that the right to marry is
fundamental because it supports a twoperson union unlike any other in its
importance to the committed individuals. This point was central to Griswold v.
Connecticut (1965), which held the Constitution protects the right of married
couples to use contraception…Suggesting that marriage is a right “older than
the Bill of Rights,” Griswold described marriage this way:
“Marriage is a coming
together for better or for worse, hopefully enduring, and intimate to the
degree of being sacred. It is an association that promotes a way of life, not
causes; a harmony in living, not political faiths; a bilateral loyalty, not
commercial or social projects. Yet it is an association for as noble a purpose as
any involved in our prior decisions. ” …
As this Court held in Lawrence, same-sex couples have the same right as opposite-sex
couples to enjoy intimate association. Lawrence
invalidated laws that made same-sex intimacy a criminal act. And it
acknowledged that “[w]hen sexuality finds overt expression in intimate conduct
with another person, the conduct can be but one element in a personal bond that
is more enduring.” … But while Lawrence
confirmed a dimension of freedom that allows individuals to engage in intimate
association without criminal liability, it does not follow that freedom stops
there. Outlaw to outcast may be a step forward, but
it does not achieve the full promise of liberty.
w
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 Court has recognized these connections by
describing the varied rights as a unified whole: “[T]he right to ‘marry,
establish a home and bring up children’ is a central part of the liberty protected
by the Due Process Clause” … Under the laws of the several States, some of
marriage’s protections for children and families are material. But marriage
also confers more profound benefits. 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” … Marriage also affords the
permanency and stability important to children’s best interests…
As all parties agree,
many same-sex couples provide Loving and
nurturing homes to their children, whether biological or adopted. And hundreds
of thousands of children are presently being raised by such couples…Most States
have allowed gays and lesbians to adopt, either as individuals or as couples,
and many adopted and foster children have same-sex parents…This provides
powerful confirmation from the law itself that gays and lesbians can create Loving, supportive families.
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…
That is not to say the
right to marry is less meaningful for those who do not or cannot have children.
An ability, desire, or promise to procreate is not and has not been a
prerequisite for a valid marriage in any State. In light of precedent
protecting the right of a married couple not to procreate, it cannot be said
the Court or the States have conditioned the right to marry on the capacity or
commitment to procreate. The constitutional marriage right has many aspects, of
which childbearing is only one.
x
Fourth and finally, this Court’s cases and the Nation’s traditions make clear
that marriage is a keystone of our social order.
Alexis de Tocqueville recognized this truth on his travels through the United
States almost two centuries ago:
“There is certainly no
country in the world where the tie of marriage is so much respected as in
America . . . [W]hen the American retires from the turmoil of public life to
the bosom of his family, he finds in it the image of order and of peace . . . .
[H]e afterwards carries [that image] with him into public affairs.” Democracy
in America 309 (H. Reeve transl., rev. ed. 1990).
In Maynard v. Hill, 125
U. S. 190, 211 (1888), the Court echoed de Tocqueville, explaining that
marriage is “the foundation of the family and of society, without which there
would be neither civilization nor progress.” Marriage, the Maynard Court said,
has long been “‘a great public institution, giving character to our whole civil
polity’”…This idea has been reiterated even as the institution has evolved in
substantial ways over time, superseding rules related to parental consent,
gender, and race once thought by many to be essential…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. 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 decisionmaking
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…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.
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. With that knowledge must come the recognition that
laws excluding same-sex couples from the marriage right impose stigma and
injury of the kind prohibited by our basic charter.
Objecting that this does not
reflect an appropriate framing of the issue, the respondents refer to Washington v. Glucksberg…which
called for a “‘careful description’” of fundamental rights. They assert the
petitioners do not seek to exercise the right to marry but rather a new and nonexistent
“right to same-sex marriage”…Glucksberg did
insist that liberty under the Due Process Clause must be defined in a most
circumscribed manner, with central reference to specific historical practices.
Yet while that approach may have been appropriate for the asserted right there
involved (physicianassisted suicide), it is inconsistent with the approach this
Court has used in discussing other fundamental rights, including marriage and
intimacy. Loving did not ask about a “right to
interracial marriage”; Turner did not ask about a “right of inmates to marry”;
and Zablocki did not ask about a “right of
fathers with unpaid child support duties to marry.” Rather, each case inquired
about the right to marry in its comprehensive sense, asking if there was a
sufficient justification for excluding the relevant class from the right…
That principle applies
here. If rights were defined by who exercised them in the past, then received
practices could serve as their own continued justification and new groups could
not invoke rights once denied. This Court has rejected that approach, both with
respect to the right to marry and the rights of gays and lesbians…
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.
Under the Constitution, same-sex couples seek in marriage the same legal
treatment as opposite-sex couples, and it would disparage their choices and
diminish their personhood to deny them this right.
The right of same-sex
couples to marry that is part of the liberty promised by the Fourteenth
Amendment is derived, too, from that Amendment’s guarantee of the equal
protection of the laws. 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 1970s and 1980s.
Notwithstanding the gradual erosion of the doctrine of coverture, invidious
sexbased classifications in marriage remained common through the mid20th century
(an extensive reference to laws extant as of 1971 treating women as unequal to
men in marriage). 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.” [Georgia] Responding to a new
awareness, the Court invoked equal protection principles to invalidate laws
imposing sexbased inequality on marriage…Like Loving
and Zablocki, these precedents show the
Equal Protection Clause can help to identify and correct inequalities in the
institution of marriage, vindicating precepts of liberty and equality under the
Constitution.
In Lawrence
the Court acknowledged the interlocking nature of these constitutional
safeguards in the context of the legal treatment of gays and lesbians…Although Lawrence elaborated its holding under the Due Process
Clause, it acknowledged, and sought to remedy, the continuing inequality that
resulted from laws making intimacy in the lives of gays and lesbians a crime
against the State…Lawrence therefore drew upon
principles of liberty and equality to define and protect the rights of gays and
lesbians, holding the State “cannot demean their existence or control their
destiny by making their private sexual conduct a crime”…
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. Baker v. Nelson must be and now is overruled,
and the State laws challenged by Petitioners in these cases are now held
invalid to the extent they exclude same-sex couples from civil marriage on the
same terms and conditions as opposite-sex couples.
IV
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 in state 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 [friend to the court, one who is not a party to a
particular action but offers the court information about the case] 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. …
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”…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, casebycase
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 decisionmaking
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…(“[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”). 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.
V
These cases also present
the question whether the Constitution requires States to recognize same-sex
marriages validly performed out of State. As made clear by the case of Obergefell and Arthur, and by
that of DeKoe and Kostura,
the recognition bans inflict substantial and continuing harm on same-sex
couples.
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 evergrowing.
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.
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.
* * * * *
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.” The Federalist No. 78…
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.
I
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.
A
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. … (petitioners conceding
that they are not aware of any society that permitted same-sex marriage before
2001). 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…(“For since the
reproductive instinct is by nature’s gift the common possession of all living
creatures, the first bond of union is that between husband and wife; the next,
that between parents and children; then we find one home, with everything in
common.”).
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.”
J. Q. Wilson, The Marriage Problem 41 (2002).
This singular
understanding of marriage has prevailed in the United States throughout our
history. The majority accepts that at “the time of the Nation’s founding [marriage]
was understood to be a voluntary contract between a man and a woman”…Early
Americans drew heavily on legal scholars like William Blackstone, who regarded
marriage between “husband and wife” as one of the “great relations in private
life,” and philosophers like John Locke, who described marriage as “a voluntary
compact between man and woman” centered on “its chief end, procreation” and the
“nourishment and support” of children…To those who drafted and ratified the
Constitution, this conception of marriage and family “was a given: its
structure, its stability, roles, and values accepted by all.” Forte, The
Framers’ Idea of Marriage and Family, in The Meaning of Marriage.
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”…There is
no dispute that every State at the founding—and every State throughout our
history until a dozen years ago—defined marriage in the traditional,
biologically rooted way. …
Of course, many did say
it. In his first American dictionary, Noah Webster
defined marriage as “the legal union of a man and woman for
life,” which served the purposes of “preventing the promiscuous intercourse of
the sexes, . . . promoting domestic felicity, and . . . securing the maintenance
and education of children.” … (1828). An influential 19thcentury 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.” … (1852)…The dictionary maintained essentially that same
definition for the next century.
This Court’s precedents
have repeatedly described marriage in ways that are consistent only with its
traditional meaning. Early cases on the subject referred to marriage as “the
union for life of one man and one woman,” (1885), which forms “the foundation
of the family and of society, without which there would be neither civilization
nor progress,” Maynard v. Hill, 125 U. S. 190, 211 (1888). We later described
marriage as “fundamental to our very existence and survival,” an understanding
that necessarily implies a procreative component…More recent cases have
directly connected the right to marry with the “right to procreate”…
As the majority notes,
some aspects of marriage have changed over time. Arranged marriages have
largely given way to pairings based on romantic love. States have replaced
coverture, the doctrine by which a married man and woman became a single legal
entity, with laws that respect each participant’s separate status. Racial restrictions
on marriage, which “arose as an incident to slavery” to promote “White
Supremacy,” were repealed by many States and ultimately struck down by this
Court…
The majority observes
that these developments “were not mere superficial changes” in marriage, but
rather “worked deep transformations in its structure” … They did not, however,
work any transformation in the core structure of marriage as the union between
a man and a woman. If you had asked a person on the street how marriage was
defined, no one would ever have said, “Marriage is the union of a man and a
woman, where the woman is subject to coverture.” 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.
B
Shortly after this Court
struck down racial restrictions on marriage in Loving,
a gay couple in Minnesota sought a marriage license. They argued that the
Constitution required States to allow marriage between people of the same sex
for the same reasons that it requires States to allow marriage between people
of different races. The Minnesota Supreme Court rejected their analogy to Loving, and this Court summarily dismissed an appeal…Baker (1972).
In the decades after Baker, greater numbers of gays and lesbians began living
openly, and many expressed a desire to have their relationships recognized as
marriages. Over time, more people came to see marriage in a way that could be
extended to such couples. Until recently, this new view of marriage remained a
minority position. After the Massachusetts Supreme Judicial Court in 2003 interpreted
its State Constitution to require recognition of same-sex marriage, many
States—including the four at issue here—enacted constitutional amendments
formally adopting the longstanding definition of marriage.
Over the last few years,
public opinion on marriage has shifted rapidly. In 2009, the legislatures of
Vermont, New Hampshire, and the District of Columbia became the first in the
Nation to enact laws that revised the definition of marriage to include same-sex
couples, while also providing accommodations for religious believers. In 2011,
the New York Legislature enacted a similar law. In 2012, voters in Maine did
the same, reversing the result of a referendum just three years earlier in
which they had upheld the traditional definition of marriage.
In all, voters and
legislators in eleven States and the District of Columbia have changed their
definitions of marriage to include same-sex couples. The highest courts of five
States have decreed that same result under their own Constitutions. The
remainder of the States retain the traditional definition of marriage.
Petitioners brought
lawsuits contending that the Due Process and Equal Protection Clauses of the
Fourteenth Amendment compel their States to license and recognize marriages
between same-sex couples. In a carefully reasoned decision, the Court of
Appeals acknowledged the democratic “momentum” in favor of “expand[ing] the
definition of marriage to include gay couples,” but concluded that petitioners
had not made “the case for constitutionalizing the definition of marriage and
for removing the issue from the place it has been since the founding: in the
hands of state voters”…That decision interpreted the Constitution correctly,
and I would affirm.
II
Petitioners first contend
that the marriage laws of their States violate the Due Process Clause. The
Solicitor General of the United States, appearing in support of petitioners,
expressly disowned that position before this Court…The majority nevertheless
resolves these cases for petitioners based almost entirely on the Due Process
Clause.
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 policymaking that
characterized discredited decisions … 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.
A
Petitioners’ “fundamental
right” claim falls into the most sensitive category of constitutional adjudication.
Petitioners do not contend that their States’ marriage laws violate an
enumerated constitutional right, such as the freedom of speech protected by the
First Amendment. There is, after all, no “Companionship and Understanding” or
“Nobility and Dignity” Clause in the Constitution…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.”
This Court has
interpreted the Due Process Clause to include a “substantive” component that
protects certain liberty interests against state deprivation “no matter what
process is provided” … The theory is that some liberties are “so rooted in the
traditions and conscience of our people as to be ranked as fundamental,” and therefore
cannot be deprived without compelling justification…(1934).
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” … (“One can conclude that
certain essential, or fundamental, rights should exist in any just society. It
does not follow that each of those essential rights is one that we as judges
can enforce under the written Constitution. The Due Process Clause is not a
guarantee of every right that should inhere in an ideal system.”).
The need for restraint in
administering the strong medicine of substantive due process is a lesson this
Court has learned the hard way. The Court first applied substantive due process
to strike down a statute in Dred Scott v. Sandford…(1857). There the Court
invalidated the Missouri Compromise on the ground that legislation restricting
the institution of slavery violated the implied rights of slaveholders. The
Court relied on its own conception of liberty and property in doing so. It
asserted that “an act of Congress which deprives a citizen of the United States
of his liberty or property, merely because he came himself or brought his
property into a particular Territory of the United States . . . could hardly be
dignified with the name of due process of law”…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….
Dred Scott’s holding was
overruled on the battlefields of the Civil War and by constitutional amendment
after Appomattox, but its approach to the Due Process Clause reappeared. In a
series of early 20thcentury cases, most prominently Lochner v.
New York [1905], this Court invalidated state statutes that
presented “meddlesome interferences with the rights of the individual,” and
“undue interference with liberty of person and freedom of contract”…In Lochner itself, the Court struck down a New York law setting
maximum hours for bakery employees, because there was “in our judgment, no
reasonable foundation for holding this to be necessary or appropriate as a
health law”…
The dissenting Justices
in Lochner explained that the New York law
could be viewed as a reasonable response to legislative concern about the
health of bakery employees, an issue on which there was at least “room for
debate and for an honest difference of opinion”…The majority’s contrary conclusion
required adopting as constitutional law “an economic theory which a large part
of the country does not entertain”…As Justice Holmes memorably put it, “The
Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” a
leading work on the philosophy of Social Darwinism. ..The Constitution “is not
intended to embody a particular economic theory . . . . It is made for people
of fundamentally differing views, and the accident of our finding certain
opinions natural and familiar or novel and even shocking ought not to conclude
our judgment upon the question whether statutes embodying them conflict with
the Constitution” …
In the decades after Lochner, the Court struck down nearly 200 laws as violations
of individual liberty, often over strong dissents contending that “[t]he
criterion of constitutionality is not whether we believe the law to be for the
public good”…By empowering judges to elevate their own policy judgments to the
status of constitutionally protected “liberty,” the Lochner
line of cases left “no alternative to regarding the court as a . . .
legislative chamber”…
Eventually, the Court
recognized its error and vowed not to repeat it. “The doctrine that . . . due
process authorizes courts to hold laws unconstitutional when they believe the
legislature has acted unwisely,” we later explained, “has long since been
discarded. We have returned to the original constitutional proposition that
courts do not substitute their social and economic beliefs for the judgment of
legislative bodies, who are elected to pass laws” …(1963) … Thus, it has become
an accepted rule that the Court will not hold laws unconstitutional simply because
we find them “unwise, improvident, or out of harmony with a particular school
of thought” … (1955).
Rejecting Lochner does not require disavowing the doctrine of implied
fundamental rights, and this Court has not done so. But to avoid repeating Lochner’s error of converting personal preferences into
constitutional mandates, our modern substantive due process cases have stressed
the need for “judicial selfrestraint” … (1992). Our precedents have required
that implied fundamental rights be “objectively, deeply rooted in this Nation’s
history and tradition,” and “implicit in the concept of ordered liberty, such
that neither liberty nor justice would exist if they were sacrificed”…
… Proper reliance on history
and tradition of course requires looking beyond the individual law being
challenged, so that every restriction on liberty does not supply its own
constitutional justification. The Court is right about that…But given the few
“guideposts for responsible decisionmaking in this unchartered area, an
approach grounded in history imposes limits on the judiciary that are more
meaningful than any based on [an] abstract formula”…Expanding a right suddenly
and dramatically is likely to require tearing it up from its roots. Even a
sincere profession of “discipline” in identifying fundamental rights…does not
provide a meaningful constraint on a judge, for “what he is really likely to be
‘discovering,’ whether or not he is fully aware of it, are his own values” … (1980).
The only way to ensure restraint in this delicate enterprise is “continual
insistence upon respect for the teachings of history, solid recognition of the
basic values that underlie our society, and wise appreciation of the great
roles [of] the doctrines of federalism and separation of powers” … (1965)
B
The majority acknowledges
none of this doctrinal background, and it is easy to see why: Its aggressive
application of substantive due process breaks sharply with decades of precedent
and returns the Court to the unprincipled approach of Lochner.
1
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…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”…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 [previous] cases purported to change the core definition of marriage as the
union of a man and a woman…
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…(“What Windsor and the United States seek . . . is
not the protection of a deeply rooted right but the recognition of a very new
right.”). Neither petitioners nor the majority cites a single case or other
legal source providing any basis for such a constitutional right. None exists,
and that is enough to foreclose their claim.
2
The majority suggests
that “there are other, more instructive precedents” informing the right to
marry…Although not entirely clear, this reference seems to correspond to a line
of cases discussing an implied fundamental “right of privacy”…In the first of
those cases, the Court invalidated a criminal law that banned the use of
contraceptives…The Court stressed the invasive nature of the ban, which
threatened the intrusion of “the police to search the sacred precincts of
marital bedrooms”…In the Court’s view, such laws infringed the right to privacy
in its most basic sense: the “right to be let alone”…
The Court also invoked
the right to privacy in Lawrence v. Texas
(2003), which struck down a Texas statute criminalizing homosexual sodomy. Lawrence relied on the position that criminal sodomy laws,
like bans on contraceptives, invaded privacy by inviting “unwarranted
government intrusions” that “touc[h] upon the most private human conduct,
sexual behavior . . . in the most private of places, the home”…
Neither Lawrence nor any other precedent in the privacy line of
cases supports the right that petitioners assert here. 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…At the same time, the
laws in no way interfere with the “right to be let alone.”
The majority also relies
on Justice Harlan’s influential dissenting opinion in Poe v.
Ullman … (1961). As the majority recounts, that opinion states that
“[d]ue process has not been reduced to any formula”…But far from conferring the
broad interpretive discretion that the majority discerns, Justice Harlan’s
opinion makes clear that courts implying fundamental rights are not “free to
roam where unguided speculation might take them”…They must instead have “regard
to what history teaches” and exercise not only “judgment” but “restraint”…Of
particular relevance, Justice Harlan explained that “laws regarding marriage
which provide both when the sexual powers may be used and the legal and
societal context in which children are born and brought up . . . form a pattern
so deeply pressed into the substance of our social life that any Constitutional
doctrine in this area must build upon that basis” …
In sum, the privacy cases
provide no support for the majority’s position, because petitioners do not seek
privacy. Quite the opposite, they seek public recognition of their
relationships, along with corresponding government benefits. 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…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.
3
Perhaps recognizing how
little support it can derive from precedent, the majority goes out of its way
to jettison the “careful” approach to implied fundamental rights taken by this
Court in Glucksberg…It is revealing that the
majority’s position requires it to effectively overrule Glucksberg,
the leading modern case setting the bounds of substantive due process. At least
this part of the majority opinion has the virtue of candor. Nobody could
rightly accuse the majority of taking a careful approach.
Ultimately, only one
precedent offers any support for the majority’s methodology: Lochner v. New York…The
majority opens its opinion by announcing petitioners’ right to “define and
express their identity”…The majority later explains that “the right to personal
choice regarding marriage is inherent in the concept of individual autonomy”…This
freewheeling notion of individual autonomy echoes nothing so much as “the
general right of an individual to be free in his person and in his power to
contract in relation to his own labor”…
To be fair, the majority
does not suggest that its individual autonomy right is entirely unconstrained.
The constraints it sets are precisely those that accord with its own “reasoned
judgment,” informed by its “new insight” into the “nature of injustice,” which
was invisible to all who came before but has become clear “as we learn [the]
meaning” of liberty…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”…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. (“We do not believe in the soundness of the views
which uphold this law,” which “is an illegal interference with the rights of
individuals . . . to make contracts regarding labor upon such terms as they may
think best”).
The majority recognizes
that today’s cases do not mark “the first time the Court has been asked to
adopt a cautious approach to recognizing and protecting fundamental rights”…On
that much, we agree. The Court was “asked”—and it agreed—to “adopt a cautious
approach” to implying fundamental rights after the debacle of the Lochner era. Today, the majority casts caution aside and
revives the grave errors of that period.
One immediate question
invited by the majority’s position is whether States may retain the definition
of marriage as a union of two people…Although the majority randomly inserts the
adjective “two” in various places, it offers no reason at all why the twoperson
element of the core definition of marriage may be preserved while the manwoman
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
twoperson 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.
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. Near the end of its
opinion, the majority offers perhaps the clearest insight into its decision.
Expanding marriage to include same-sex couples, the majority insists, would
“pose no risk of harm to themselves or third parties” … This argument again
echoes Lochner, which relied on its assessment
that “we think that a law like the one before us involves neither the safety,
the morals nor the welfare of the public, and that the interest of the public
is not in the slightest degree affected by such an act”…
Then and now, this
assertion of the “harm principle” sounds more in philosophy than law. The
elevation of the fullest individual selfrealization 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. Respecting that understanding
requires the Court to be guided by law, not any particular school of social thought.
As Judge Henry Friendly once put it, echoing Justice Holmes’s dissent in Lochner, “the Fourteenth Amendment does not enact John
Stuart Mill’s On Liberty any more than it enacts Herbert Spencer’s Social
Statics….” And it certainly does not enact any one concept of marriage.
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 policymaking, 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).
III
In addition to their due
process argument, petitioners contend that the Equal Protection Clause requires
their States to license and recognize same-sex marriages. The majority does not
seriously engage with this claim. Its discussion is, quite frankly, difficult
to follow. The central point seems to be that there is a “synergy between” the
Equal Protection Clause and the Due Process Clause, and that some precedents
relying on one Clause have also relied on the other…Absent from this portion of
the opinion, however, is anything resembling our usual framework for deciding
equal protection cases. It is casebook doctrine that the “modern Supreme
Court’s treatment of equal protection claims has used a meansends methodology
in which judges ask whether the classification the government is using is
sufficiently related to the goals it is pursuing”…The majority’s approach today
is different:
“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”…
The majority goes on to
assert in conclusory fashion that the Equal Protection Clause provides an
alternative basis for its holding…Yet the majority fails to provide even a
single sentence explaining how the Equal Protection Clause supplies independent
weight for its position, nor does it attempt to justify its gratuitous violation
of the canon against unnecessarily resolving constitutional questions…In any
event, the marriage laws at issue here do not violate the Equal Protection
Clause, because distinguishing between opposite-sex and same-sex couples is
rationally related to the States’ “legitimate state interest” in “preserving
the traditional institution of marriage”…
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. The equal
protection analysis might be different, in my view, if we were confronted with
a more focused challenge to the denial of certain tangible benefits. Of course,
those more selective claims will not arise now that the Court has taken the
drastic step of requiring every State to license and recognize marriages
between same-sex couples.
IV
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”…
Nowhere is the majority’s
extravagant conception of judicial supremacy more evident than in its
description— and dismissal—of the public debate regarding same-sex marriage.
Yes, the majority concedes, on one side are thousands of years of human history
in every society known to have populated the planet. But on the other side,
there has been “extensive litigation,” “many thoughtful District Court
decisions,” “countless studies, papers, books, and other popular and scholarly
writings,” and “more than 100” amicus briefs
in these cases alone…What would be the point of allowing the democratic process
to go on? It is high time for the Court to decide the meaning of marriage,
based on five lawyers’ “better informed understanding” of “a liberty that
remains urgent in our own era” … The answer is surely there in one of those amicus briefs or studies.
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.”
Rehnquist, The Notion of a Living Constitution…(1976). 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”…
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. Heavyhanded 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…(1985)…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 fairminded 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.
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.
* * * * *
I join THE CHIEF JUSTICE’s
opinion in full. I write separately to call attention to this Court’s threat to
American democracy.
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.
I
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. It would
be surprising to find a prescription regarding marriage in the Federal
Constitution since, as the author of today’s opinion reminded us only two years
ago (in an opinion joined by the same Justices who join him today):
“[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 state-law policy decisions with respect to domestic relations.”
But we need not
speculate. 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.
II
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. [footnote: 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.]
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 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.” The Federalist No. 78
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.
* * * * *
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
The majority’s decision
today will require States to issue marriage licenses to same-sex couples and to
recognize same-sex marriages entered in other States largely based on a
constitutional provision guaranteeing “due process” before a person is deprived
of his “life, liberty, or property.” 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.
II
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.
A 1
As used in the Due
Process Clauses, “liberty” most likely refers to “the power of locomotion, of
changing situation, or removing one’s person to whatsoever place one’s own
inclination may direct; without imprisonment or restraint, unless by due course
of law.” W. Blackstone … (1769) … That
definition is drawn from the historical roots of the Clauses and is consistent
with our Constitution’s text and structure.
Both of the
Constitution’s Due Process Clauses reach back to Magna Carta. Chapter 39 of the
original Magna Carta provided, “No free man shall be taken, imprisoned,
disseised, outlawed, banished, or in any way destroyed, nor will We proceed
against or prosecute him, except by the lawful judgment of his peers and by the
law of the land” … Although the 1215 version of Magna Carta was in effect for
only a few weeks, this provision was later reissued in 1225 with modest changes
to its wording as follows: “No freeman shall be taken, or imprisoned, or be
disseised of his freehold, or liberties, or free customs, or be outlawed, or
exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn
him, but by lawful judgment of his peers or by the law of the land” … In his influential commentary on the provision
many years later, Sir Edward Coke interpreted the words “by the law of the
land” to mean the same thing as “by due process of the common law” …
After Magna Carta became
subject to renewed interest in the 17th century … William Blackstone referred
to this provision as protecting the “absolute rights of every Englishman” … And
he formulated those absolute rights as “the right of personal security,” which
included the right to life; “the right of personal liberty”; and “the right of
private property” … He defined “the
right of personal liberty” as “the power of locomotion, of changing situation,
or removing one’s person to whatsoever place one’s own inclination may direct;
without imprisonment or restraint, unless by due course of law” …
The Framers drew heavily
upon Blackstone’s formulation, adopting provisions in early State Constitutions
that replicated Magna Carta’s language, but were modified to refer specifically
to “life, liberty, or property.” State decisions interpreting these provisions
between the founding and the ratification of the Fourteenth Amendment almost
uniformly construed the word “liberty” to refer only to freedom from physical
restraint…Even one case that has been identified as a possible exception to
that view merely used broad language about liberty in the context of a habeas
corpus proceeding—a proceeding classically associated with obtaining freedom
from physical restraint…
In enacting the Fifth
Amendment’s Due Process Clause, the Framers similarly chose to employ the
“life, liberty, or property” formulation, though they otherwise deviated
substantially from the States’ use of Magna Carta’s language in the Clause…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. In Munn v. Illinois…(1877), for example, the Court
recognized the relationship between the two Due Process Clauses and Magna Carta…and
implicitly rejected the dissent’s argument that “‘liberty’” encompassed
“something more . . . than mere freedom from physical restraint or the bounds
of a prison”... That the Court appears to have lost its way in more recent
years does not justify deviating from the original meaning of the Clauses.
2
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. B. Bailyn, The Ideological
Origins of the American Revolution 27 (1967). Locke described men as existing
in a state of nature, possessed of the “perfect freedom to order their actions
and dispose of their possessions and persons as they think fit, within the
bounds of the law of nature, without asking leave, or depending upon the will
of any other man” … Because that state of nature left men insecure in their
persons and property, they entered civil society, trading a portion of their
natural liberty for an increase in their security…Upon consenting to that
order, men obtained civil liberty, or the freedom “to be under no other
legislative power but that established by consent in the commonwealth; nor
under the dominion of any will or restraint of any law, but what that
legislative shall enact according to the trust put in it.” Id., §22, at 13.4
This philosophy permeated
the 18th-century political scene in America. A 1756 editorial in the
Boston Gazette, for example, declared that “Liberty in the State of Nature” was
the “inherent natural Right” “of each Man” “to make a free Use of his Reason
and Understanding, and to chuse that Action which he thinks he can give the
best Account of,” but that, “in Society, every Man parts with a Small Share of
his natural Liberty, or lodges it in the publick Stock, that he may possess the
Remainder without Controul”…Similar sentiments were expressed in public
speeches, sermons, and letters of the time…
The founding-era idea of
civil liberty as natural liberty constrained by human law necessarily involved
only those freedoms that existed outside of government…As one later commentator
observed, “[L]iberty in the eighteenth century was thought of much more in
relation to ‘negative liberty’; that is, freedom from, not freedom to, freedom
from a number of social and political evils, including arbitrary government
power” … Or as one scholar put it in 1776, “[T]he common idea of liberty is
merely negative, and is only the absence of restraint” … When the colonists
described laws that would infringe their liberties, they discussed laws that
would prohibit individuals “from walking in the streets and highways on certain
saints days, or from being abroad after a certain time in the evening, or . . .
restrain [them] from working up and manufacturing materials of [their] own
growth” … Each of those examples involved freedoms that existed outside of
government.
B
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. Those precedents all involved
absolute prohibitions on private actions associated with marriage. Loving…for example, involved a couple who was criminally prosecuted
for marrying in the District of Columbia and cohabiting in Virginia…They were
each sentenced to a year of imprisonment, suspended for a term of 25 years on
the condition that they not reenter the Commonwealth together during that time…Virginia’s
anti-miscegenation 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…
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.”
III
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.
A
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.
B
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.
IV
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 it did, 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.
* * * * *
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.
* * * * *
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.
I
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…Indeed:
“In this country, no
State permitted same-sex marriage until the Massachusetts Supreme Judicial
Court held in 2003 that limiting marriage to opposite-sex couples violated the
State Constitution. Nor is the right to same-sex marriage deeply rooted in the
traditions of other nations. No country allowed same-sex couples to marry until
the Netherlands did so in 2000.
“What [those arguing in
favor of a constitutional right to same sex marriage] seek, therefore, is not
the protection of a deeply rooted right but the recognition of a very new
right, and they seek this innovation not from a legislative body elected by the
people, but from unelected judges. Faced with such a request, judges have cause
for both caution and humility” …
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.
II
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 wellbeing 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” …
III
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.
* * * * *
