Majority Opinion

And in Conclusion …

In ringing language, Justice Anthony Kennedy said same-sex couples respect marriage and “ask for equal dignity in the eye of the law.” That right, he said, is granted by the Constitution.

FROM PAGE 33 OF THE DOCUMENT

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 Debate Will Continue

Justice Kennedy acknowledges that people who strongly believe that marriage should be only between a man and a woman will continue to oppose same-sex marriage. That debate should continue, he writes, but the marriages must be allowed.

FROM PAGE 32 OF THE DOCUMENT

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.

A Paean to Marriage

Justice Kennedy refers to marriage using a word that appears nine times in his majority opinion: “dignity.” And he depicts the “transcendent” married state as “essential to our most profound hopes and aspirations.”

FROM PAGE 8 OF THE DOCUMENT

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.

Finding ‘Dignity’ in the Constitution?

Justice Kennedy makes his case that an interest in personal dignity is central to the due process clause of the 14th Amendment, which says no state shall “deprive any person of life, liberty, or property, without due process of law.” Dignity can be found inherent in that idea, he argues.

FROM PAGE 15 OF THE DOCUMENT

The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U. S. 145, 147–149 (1968). In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.

Finding New Fundamental Rights

Justice Kennedy points out that the founders gave the country a Bill of Rights, but no rule book or formula for deciding what is on or off the ultimate list. It evolves, he explains, as it did when the Supreme Court held that the right to marry is protected by the Constitution in Loving v. Virginia.

FROM PAGE 16 OF THE DOCUMENT

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.

No Time to Wait

What of the argument that the same-sex marriage question should be left to the states? Justice Kennedy says the cautious approach will not do. There is urgency here, he writes; not least for plaintiffs like April DeBoer and Jayne Rowse, who want protection for their children. “For them and their children the childhood years will pass all too soon,” he writes.

FROM PAGE 29 OF THE DOCUMENT

Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. … 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.”

Dissenting Opinions

Chief Justice Roberts Dissents

In one of the four dissents in the case, Chief Justice John G. Roberts Jr., joined by Justices Antonin Scalia and Clarence Thomas, says that while arguments based on fairness and affirming love have “undeniable appeal,” the issue should have been left to the states, not decided by the Supreme Court.

FROM PAGE 41 OF THE DOCUMENT

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, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered).

‘Just Who Do We Think We Are?’

Justice Roberts takes issue with Justice Kennedy’s argument that fundamental rights are still to be found and developed.

FROM PAGE 42 OF THE DOCUMENT

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.” Ante, at 11, 23. 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?

Legislating from the Bench

Justice Roberts accuses Justice Kennedy and the four other justices who ruled in favor of same-sex marriage of engaging in policymaking free of Constitutional foundation. Celebrate the decision if you favor it, he says in the concluding lines of the dissent [ON PAGE 68]. “But do not celebrate the Constitution. It had nothing to do with it.”

FROM PAGE 49 OF THE DOCUMENT

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. Ante, at 12. 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, 198 U. S. 45. Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.

Justice Scalia: A “Naked Judicial Claim” to Power

At his most fiery, Justice Scalia — who says at the beginning of his dissent that what the law says about marriage “is not of immense personal importance to me” [PAGE 69] — writes that the justices in the majority have usurped the power of the people to govern themselves.

FROM PAGE 73 OF THE DOCUMENT

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.

Justice Thomas: This Is Not Liberty

Citing legal history all the way back to Magna Carta, Justice Thomas finds no grounds for a constitutional right to same-sex marriage, and says that the majority misconstrues even the concept of liberty.

FROM PAGE 94 OF THE DOCUMENT

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.

Justice Thomas: Mixed-Race Marriage Comparison “Offensive and Inaccurate”

In a strongly worded footnote, Justice Thomas takes issue with the comparison of same-sex marriage bans to the laws banning mixed-race marriage that were struck down in Loving v. Virginia.

FROM PAGE 88 OF THE DOCUMENT

The suggestion of petitioners and their amici that antimiscegenation laws are akin to laws defining marriage as between one man and one woman is both offensive and inaccurate. “America’s earliest laws against interracial sex and marriage were spawned by slavery.” P. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America 19 (2009). For instance, Maryland’s 1664 law prohibiting marriages between ” ‘freeborne English women’ ” and ” ‘Negro Sla[v]es’ ” was passed as part of the very act that authorized lifelong slavery in the colony. … 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. Brief for Scholars of History and Related Disciplines as Amici Curiae 1. 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.”

Justice Alito: The Majority has Gone “Postmodern”

Justice Samuel A. Alito Jr., warns that the same-sex marriage decision will be used not as a shield but as a club to crush dissent.

FROM PAGE 101 OF THE DOCUMENT

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. E.g., ante, at 11–13. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.