With excerpts below from Chief Justice Roberts dissent, today we continue our serialization of what we think are the most important excerpts from the five opinions in the Supreme Court’s gay marriage decision in Obergefell v. Hodges on June 26, 2015. We have added a few references which are indicated by brackets. Excerpt from the dissents of Justices Scalia, Thomas, and Alito will be published in each of the coming days.
Chief Justice Roberts, joined by Justices Scalia and Thomas, dissented:
Petitioners make strong arguments rooted in social policy and considerations of fairness. . . . But this Court is not a legislature. . . .
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”? . . .
For all those millennia, across all those civilizations, “marriage” referred to only one relationship: the union of a man and a woman. . . . It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship. . . .
The 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.” [quoting the Court’s prior gay-marriage case, Windsor (2013)]. . . . This Court’s precedents have repeatedly described marriage in ways that are consistent only with its traditional meaning. . . . As the majority notes, some aspects of marriage have changed over time. . . . 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. . . .
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 such as Lochner v. New York . . . .
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. . . . 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.”. . . 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 . . . .
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. . . . Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. . . .
Neither Lawrence nor any other precedent [citing the two contraception cases, Griswold (1965) and Eisenstadt (1972)] 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. . . . 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. . . .
[Polygamy]. 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 two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. . . .
In addition to their due process argument, petitioners contend that the Equal Protection Clause requires their States to license and recognize same-sex marriages. . . . 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.
[Religious liberty]. Today’s decision, for example, creates serious questions about religious liberty. . . . 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.
• “Essential excerpts from “Obergefell v. Hodges”: Majority Opinion” (July 15, 2015)
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