The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This morning, in Obergefell v. Hodges, the Supreme Court held 5-4 that the Fourteenth Amendment guarantees the right of same-sex couples to marry under state law. Specifically, the Court held that the Fourteenth Amendment requires states to license marriages between two people of the same sex as well as to recognize same-sex marriages that were lawfully performed in another state. Justice Kennedy wrote the opinion for the Court. Each of the four dissenters (Roberts, Scalia, Thomas, and Alito) authored a dissent.
From the majority opinion:
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.
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.
From the Chief Justice's dissent:
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.
From Justice Thomas' dissent:
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.
The opinions, with the syllabus, weigh in at 103 pages.