A Bad Week at the Office for the Supreme Court, Part 3

Case name: James Obergefell, et al., v. Richard Hodges, Director, Ohio Department of Health, et al.

Case number: 14-556, etc. (link to decision) [1]

Date decided: June 26, 2015

Issue: Constitutionality – does the 14th Amendment require states to recognize same-sex marriages?

Background: The petitioners are sixteen individuals (seven same-sex couples and two other individuals whose partners had died) who are involved in various situations in which their same-sex relationship has been denied a government benefit. Some were denied marriage licenses, and at least one filed suit to be allowed to be listed as “spouse” on the partner’s death certificate. The question is whether the states’ refusal to confer these benefits is a violation of the Fourteenth Amendment of the Constitution.

Summary: The topics discussed among the opinions include: a) what is the essential nature of marriage, b) what, if any, is the harm identified when states deny same-sex couples the right to participate in marriage, c) does this harm violate the Due Process or Equal Protection Clause, or both, and d) what are the collateral effects of the Court’s decision?

In finding that the state laws prohibiting same-sex marriage are unconstitutional, the Court identifies four fundamental rights that are associated with marriage, none of which are exclusive to marriage being defined as a union of one man and one woman. Thus, denying these fundamental to same-sex couples violates the Due Process Clause. The Court also held that the prohibition against same-sex marriage violates the Equal Protection Clause, finding a synergy between the Due Process Clause (“liberty“) and the Equal Protection Clause (“equality“).

Chief Justice Roberts’ dissent focuses on the danger that the Court’s decision, in deviating so far from the traditional analysis and substituting an unusual definition of marriage, conducted an unwarranted “substantive due process” analysis, a long-abandoned doctrine in which the Court had substituted its public policy preferences over sound constitutional analysis.

Justice Scalia laments the effect the Court’s decision has on halting the public debate over same-sex marriage, and the legitimacy of the Court.

Justice Thomas outlines the history behind the Due Process Clause’s concept of “liberty”, and finds that the rights claimed in this case – a right to public affirmation and benefits – does not fit the concept of “liberty” as conceived in the Fifth and Fourteenth Amendment Due Process Clauses, and historical precedent.

Justice Alito writes to detail the purpose of marriage and the reason the states had enacted laws to preserve it.


A History of Marriage, and of its Changes

The Court’s opinion (written by Justice Kennedy and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan) opens its discussion lauding the institution of marriage over human history:

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. [Page 3.]

Upon the contention that the “marriage” being exalted inextricably involves a union of a man and a woman, and that extending the concept to include same-sex couples would “demean a timeless institution”, the Court dismisses this concern:

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. [Page 4.]

The Court then chronicles how the history of marriage has changed over time, in particular the role of the woman in the relationship and her increase in power. The Court finds that these changes are also good:

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. [Page 7.]

The Court applies this rule to the history of gays and lesbians and the change in the treatment of them in the law. From homosexuality being treated as a crime and a mental illness, to political and moral acceptance, the Court views this development in light of the push for same-sex marriage recognition. The Court cited the push the states to obtain the constitutional right to same-sex marriage, as well as the federal and state versions of the Defense of Marriage Act that defined marriage by statute to be a union of a man and a woman, and the recent decisions from the lower courts.

Fourteenth Amendment, Due Process Clause

In 1868, the U.S. Constitution was amended to include (with other provisions) this language:

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. [Emphasis added.]

After briefly reciting the history of cases involving the “fundamental liberties” of marriage and of privacy that had upheld protections under the Due Process Clause, the Court begins its opinion by acknowledging the limitations of the lawmakers of the past:

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. [Page 11.]

The Court points to Loving v. Virginia and other cases that struck down state restrictions on marriage. These courts held that marriage was a fundamental right (“one of the vital personal rights essential to the orderly pursuit of happiness by free men”, quoting Loving).

Addressing the contention that all of the cases involving marriage assumed a union of one man and one woman, the Court dismisses that interpretation and outlines four “essential attributes” that these cases really tell us what are the fundamental rights associated with marriage:

1. The right to personal choice regarding marriage is inherent to individual autonomy:

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.

2. The right to marry supports a two-person union unlike any other in its importance to the committed individuals:

The right to marry thus dignifies couples who “wish to define themselves by their commitment to each other.” Windsor, supra, at ___ (slip op., at 14). Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.

3. Marriage safeguards children and families, and draws meaning from related rights from related rights of childrearing, procreation, and education:

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.

4. Marriage is a keystone of our social order:

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. . . . [Court, Pages 12-17.]

Having cited these as the fundamental rights associated with marriage, the Court states that “[t]here 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 exclusion, the Court says, imposes “stigma and injury” of the kind prohibited by the Due Process Clause.

Turning to the objection that the liberty sought in this case was not a right to marriage, but a “right to same-sex marriage”, the Court dismisses this by saying that the previous marriage cases never defined marriage by who exercised it. Loving, the Court said, did not discuss a “right to interracial marriage”. Turner v. Safley, a case involving a ban on prison inmates from marrying, did not involve “a right of inmates to marry”. And so forth:

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.

Fourteenth Amendment, Equal Protection Clause

Turning again to the Fourteenth Amendment:

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.

Under the tests previously established by the Supreme Court, an Equal Protection claim would, in most cases, be viewed in one of two standards of review. If the state action interferes with a fundamental right or discriminates using a “suspect classification” of citizens, then it is viewed with strict scrutiny, and the state must prove that its action furthers a necessary interest and that there are no other options that are less intrusive to carry out that interest. If the state action does not interfere in this way, then the action is viewed under a “rational basis” standard, meaning that if the state had a rational motive for its action, then the courts would defer to their judgment in carrying out the action.

In this case, Court doesn’t conduct a traditional Equal Protection analysis, favoring instead a convergence of liberty (from Due Process) and equality (from Equal Protection) in the identification of the right being infringed:

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. [Page 22.]

On this basis, the Court holds that the state laws restricting marriage to a union of a man and a woman are overruled.

Miscellaneous issues

Having finished with the core of its analysis, the Court next addresses collateral issues raised in the proceeding:

The Court’s decision prematurely removes same-sex marriage from the public debate. After noting that the public has engaged in such deliberation that there is an “enhanced understanding” of the issue, the Court notes that the democratic process is the appropriate process, unless the process abridges fundamental rights. Specifically, the Court says that the issue here is a legal one, not a political one, of whether same-sex couples have the right to marry, which the Court says that the delay in recognizing this right caused harm to men and women in the interim [Page 25].

Allowing same-sex couples to wed will lead to fewer opposite-sex marriages. The logic here is that by severing the procreation element to marriage, fewer opposite-sex couples will bother with entering a marital relationship. The Court responds saying that this is too narrow of an objection:

Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so. . . . The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe. Indeed, with respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.

If you have a religious objection to same-sex marriage, you can still “advocate with the utmost, sincere conviction” that same-sex marriage should not be condoned. This is the bread crumb the Court grants, while stating that:

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.

There will be more on this in the dissents.


To open his dissent, Chief Justice Roberts suggests that the dual-gender element to marriage is more than incidental:

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. [Pages 4-5.]

Roberts acknowledges the changes in marriage over time, but he ascribes less meaning to the institution. State laws repealing coverture (the legal status of husband and wife as one legal entity) and court cases overturning racial restrictions on marriage, however “transformational” one believes them to be, do not support abandoning the “core structure” of marriage as the union of one man and one woman. [Page 8.]

This concept of marriage is contrasted with the Court’s “four principles and traditions” it purports to have found in the previous Due Process cases. Roberts disagrees, and indicates that the Court’s opinion is an example of “substantive due process”:

[T]he 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. [Page 10.]

Justice Roberts focuses on Lochner v. New York as the grim precedent for the Court’s opinion. In that case, the Court struck down a state law limiting bakers to working 40 hours a week based on views less from the Constitution and more from the public policy preferences of the Court’s majority:

The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the state, interfering with their independence of judgment and of action. They are in no sense wards of the state. [2]

Justice Roberts describes a similar lack of constitutional analysis in the Court’s opinion:

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.

The Court did cite some precedent, which Justice Roberts finds lacking:

  • The “marriage” cases (Turner, Zablocki, and Loving): in these cases, the state restrictions on the right to marry (status as a prisoner, owing child support, race) were struck down. However, none of these cases disputed the core definition of marriage: “Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was.” [Page 16.]
  • The “privacy” cases (Griswold, Lawrence): these cases involved criminal prohibitions, which necessarily involve government intrusion to enforce. This case does not share that similarity:

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.” [Pages 17-18.]

Other Concerns Beyond the Due Process Clause

What is to stop the fundamental right to marry from including unions of more than two people? Justice Roberts notes that the Court’s use of the term “two” to describe the number in a marriage is arbitrary. Furthermore, marriages of more than two have more history than the Court’s new definition of marriage. [Page 20.]

The argument that “expanding marriage will not harm anybody” is not a constitutional principle:

Then and now, this assertion of the “harm principle” sounds more in philosophy than law. The elevation of the fullest individual self-realization over the constraints that society has expressed in law may or may not be attractive moral philosophy. But a Justice’s commission does not confer any special moral, philosophical, or social insight sufficient to justify imposing those perceptions on fellow citizens under the pretense of “due process.” [Page 22.]

The Court’s feeble attempt at a separate Equal Protection Clause analysis: After noting that the Court failed to provide “even a single sentence” to support an Equal Protection Clause argument, Justice Roberts obliges by holding that “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.” [Page 24.]

How will the democratic process work in the future? The excesses of the Court’s opinion leave Chief Justice Roberts worried about the effect of the balance of powers between the three branches of government:

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. [Pages 26-27.]

How will those people of faith who disagree with same-sex marriage be able to engage in public society? Justice Roberts points out that the right granted in the First Amendment is the “free exercise” of religion, not just the right to “advocate” and “teach” one’s religion. Justice Roberts is pessimistic about how the Court will handle future cases regarding the accommodations for the practice of religion:

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.


Justice Scalia writes briefly to voice his concerns about the effect of the Court’s decision:

  • The vigorous debate over same-sex marriage that had engaged the public was put to a stop, and done so with an opinion “lacking even a thin veneer of law”. The Court’s declaration of the limitations of the Constitution’s drafters and ratifiers should have led to a conclusion that this is what the amendment process is for. Instead, the Court engages in a “superlegislative” power that is alien to the democratic process.
  • The decision itself lacks seriousness. It holds that for the first 135 years following the Fourteenth Amendment’s ratification (from 1868 to 2003’s Massachusetts’ state court permitting same-sex marriage), all of the states overlooked the Fourteenth Amendment’s connection to same-sex marriage. The writing style is “pretentious” and the content “egotistic”. Justice Scalia cites an example:

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. [Pages 8-9, Footnote 22.]

Justice Scalia closes his dissent lamenting the possibility of the Court losing its legitimacy and power:

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.


“Liberty”, as Understood in the Due Process Clauses of the Fifth and Fourteenth Amendments

The primary focus of Justice Thomas’ dissent is to counter the Court’s description of “liberty” with one that is consistent with the principle envisioned by those who first invoked the principle.

Justice Thomas’ discourse on “liberty” is a structured argument deconstructing the Court’s vision of “liberty”:

1. The Court’s opinion relies on “substantive due process”, which is not a valid constitutional doctrine. The idea behind “substantive due process” is that the mechanisms of representative democracy – majority vote by officials elected by the people, signed into law by the executive – isn’t enough. The thing itself being voted on and signed into law must be just.

Justice Thomas expresses a strong disagreement with this doctrine, and cites the Court opinion as an example of why:

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—roam at large in the constitutional field guided only by their personal views as to the “fundamental rights” protected by that document. [Page 2.]

2. Even if substantive due process were legitimate, this case would not be one in which any “liberty” has been abridged. Justice Thomas then engages in a history lesson on “liberty”:

a. In its original version, “liberty” referred to one of a minimal type. The story of the Due Process Clause begins with the Magna Carta, which imposed these restrictions on the English monarchy:

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.

This list was later condensed to three rights: “the right of personal security”, “the right to life”, and “the right of private property”. [Page 5.] This was the inspiration for the rights the Framers described as the rights to “life, liberty, or property” in the Fifth Amendment. Justice Thomas contends that this understanding of due process should govern the Fourteenth Amendment‘s Due Process Clause as well:

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.

b. Even if “liberty” refers to something more than the minimal set of freedoms as originally understood, the concept does not include those freedoms claimed here. Justice Thomas next turns to contemporaries to the Framers, whose view of “liberty” was one of a “negative liberty”:

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.  [Emphasis in the original.]

3. Regardless of the definition of “liberty”, the case fails because there has been no depravation of it. This focuses on the types of harms that invoke this due process right, which Thomas does not find under the original definition, nor under the later definitions. The depravations cited by the petitioners are directed at the states not granting “governmental entitlements”, including monetary benefits. This, according to Justice Thomas, is not what the Due Process Clause was intended to uphold:

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. [Page 10.]

Justice Thomas applies this difference in the idea of “liberty” to distinguish between the previous marriage cases and the claim made by the petitioners. The previous statutes — prohibiting interracial marriage, prohibiting marriage because of child-support arrears, and prohibiting marriage among inmates — either involved criminal prosecution or, in the last instance, express permission from the prison administrator. They carried more prohibitions than merely receiving public recognition and government benefits.

Collateral Damage

Justice Thomas then turns to the effects of the Court’s decision, first to the political debate that has now been halted:

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.

The second effect is the threat to religious liberty, which Justice Thomas states means more than the Court’s depiction of a right to “advocate” a religious belief:

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.

The final note in this dissent notes the Court’s ubiquitous statements that the decision will advance the “dignity” of same-sex couples. Consistent with his description of liberty as something inherently retained by the citizen and not something to be dispensed by the government, Justice Thomas states that:

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.


Justice Alito begins his short dissent by citing the same objection as the other dissenters: by judicially expanding the right to liberty beyond those rights “deeply rooted in this Nation’s history and tradition”, the Court has substituted the judgment of a majority of nine lawyers for the public at large. The Court’s decision “confer constitutional protection upon that right simply because they believe that it is fundamental”. [Page 3.]

The primary focus of Justice Alito’s dissent is to contrast the petitioners’ understanding of marriage – “the happiness of the persons who choose to marry” – with the traditional understanding of marriage, one that most of the states had fought to preserve:

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 ofchanges in our society’s understanding of marriage.

While, for many, the attributes of marriage in 21stcentury 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.


When law students are taught to brief a case, the traditional format to use is signified by the acronym FIRAC:

Facts: Determine the relevant facts of the case. This requires some advance knowledge of the issues in order to sort out which facts are relevant.

Issue: The issue presents itself when two or more parties have a conflict over the interpretation of a specific law.

Rule: A statute, case, or constitutional provision, is cited, as well as any applicable doctrine previous courts have used to interpret the applicable piece of law.

Application: Having cited the rule, the task is to apply the rule to the facts at hand, to determine whether the general rule does or does not apply. This involves reasoning by analogy – do the past rulings apply in the same way when presented with the current facts?

Conclusion: This brings the analysis back to where it began. Either one group or the other will prevail, and the procedural consequences will be set forth.

This method was developed assuming that the parts connected with each other, to create a logical flow that from specific facts a general rule could be invoked, and then an exercise in analogy-making would determine whether the general rule would apply to the case at hand.

However, in this case, the Court’s four-point redefinition of the fundamental liberties of marriage breaks this chain of logic, changing the rule to become something completely different from preceding opinions. The application and conclusion may logically follow, but they follow from this radical redefinition of due process law.

This kind of redefinition is strikingly out of place in a Supreme Court decision. It’s hard to overstate, especially to those not versed in the language of legal decisions, how off-key the Court’s language is here. Points of law are not normally decided over whether the denial of a government benefit “demeans” someone or deprives them of “dignity”. Hurt feelings are not the basis of a constitutional claim. Parts of the Court’s decision sound like a proclamation from a medieval king from a bad children’s book.

Some deeper concerns remain with the decision that go beyond what the dissents covered, and go to how we view ourselves. In order for the proponents of same-sex marriage to sustain their claim of lack of due process, they had to portray the individuals not as individuals who engage in a classification of sexual behavior, but as sexual classifications of “gay”, “lesbian”, or “bisexual”. individuals, as if they possessed a “sexuality” that was in their essential being. Otherwise, they wouldn’t get their case past the obvious point that these individuals already have the right to marry; they’re just not doing it right.

This classification of individuals rather than behavior makes a huge assumption about people these activists don’t even know. Most of those among us don‘t view themselves as sexually active with a category of people. To the contrary, they view themselves sexually as their husband’s wife and their wife’s husband, or choose to temporarily or permanently abstain from sexual activity. To put these life choices into clumsy categories, just for the sake of creating an illusory class of people claiming disenfranchisement, is insulting, dare I say, “demeaning”. Not only that, it’s baseless. In the 1990s, gay activists attempted to push the message that “being gay” was the same as “being black”, and therefore conflating “sexual orientation” denial of marriage with racial discrimination. Some studies attempted to make this scientific fact, but all that really resulted from it was fiat declarations by politicized academic and medical associations. [3]

It’s also dangerous, because it removes the moral component behind sexual activity. After all, if sex is who you are instead of what you do, who can judge? If a husband serially cheats on his wife with blonde-haired, big-bosomed women, does he confess and say,
“Sorry, honey, I can’t help it. I have the blonde-hair, big-bosom sexual attraction gene”?

Does “intergenerational love” get public affirmation under the guise that the 15-year old girl has an attraction to 40-year old men, and the 40-year old man has an attraction to 15-year old girls?

Does a man get a pass for serially sabotaging his sexual relationships because he’s only attracted to 28-year old women, even though he’s passed the age of 50?

Of course not. Yet this a reasonable application of the principle assumed in order to come up with a right to same-sex marriage. For all of the bluster thinking that this is a moral equivalence between homosexual conduct and underage sexual activity, the only equivalence here is that they are both properly viewed as sexual activity, not sexual identity. The fact that gay activists staked their flag on “sexual identity” for one and vociferously deny the other reveals how intellectually feeble this movement has been. [4]

This may be the reason Justice Kennedy wrote the Court’s decision the way he did. Instead of applying a straightforward ruling that homosexuals are a protected class like racial groups, the opinion instead expresses a grab bag of euphoric slogans disguised as constitutional law. It would prevent other groups from using this as precedent, and would grant this weirdly-expressed fundamental right to same-sex marriage applicants on a one-time basis.

This tactic has been utilized by the Court in the recent past. When the Amish community filed suit to challenge a state law requiring children to attend school beyond the age of 14, the Supreme Court, in Wisconsin v. Yoder [5], held that Wisconsin’s compulsory attendance law interfered with the rights of parents in the religious upbringing of their children, and thus was held in violation of the right to Free Exercise of Religion under the First Amendment. While the Yoder Court held in favor of the Amish parents, subsequent courts have not applied this rule to other groups making similar claims. I’m not 100 percent wedded to this possibility, but it’s a plausible theory behind Justice Kennedy’s sideways turn, not only in this case, but in previous cases involving homosexual conduct. [6]

There are other angles to this decision that could be the subject of future writings, but that will be reserved for another day.


[1] This is a consolidation of four cases brought before the Court. The other three cases were Nos. 14-562, 14-571, and 14-574.

[2] 198 U.S. 45,57 (1905). A link to the decision is here.

[3] For a resource on these and other studies in the homosexual rights movement, see Getting It Straight: What the Research Shows About Homosexuality, Peter Sprigg and Timothy Dailey, eds. (Family Research Council).

[4] For those not old enough to remember, the ascension of the gay rights movement has been accomplished more with brawn than with brain, insisting on invading America’s institutions (the church, public schools, corporate boardrooms, the media and entertainment), while freezing out any opposing points of view. A good recap of these tactics in the 1990s and early 2000s can be found in The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today, by Alan Sears and Craig Osten (Broadman and Holman). Sears and Osten are with the Alliance Defense Fund, who has been on the litigation front lines in this conflict (and others involving religious liberty).

[5] 406 U.S. 205 (1972).

[6] Romer v. Evans, 517 U.S. 620 (1996); Lawrence v. Texas, 539 U.S. 558 (2003).

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