CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA
and JUSTICE THOMAS join, dissenting.
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
2 OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
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, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization
altered).
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.
Cite as: 576 U. S. ____ (2015) 3
ROBERTS, C. J., dissenting
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?
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.”
Lochner v. New York, 198 U. S. 45, 76 (1905) (Holmes, J.,
dissenting). Accordingly, “courts are not concerned with
the wisdom or policy of legislation.” Id., at 69 (Harlan, J.,
dissenting). 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.” Ante, at
19. 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.
4 OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
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, ante, at 4, I would not “sweep away what has
so long been settled” without showing greater respect for
all that preceded us. Town of Greece v. Galloway, 572
U. S. ___, ___ (2014) (slip op., at 8).
A
As the majority acknowledges, marriage “has existed for
millennia and across civilizations.” Ante, at 3. For all
those millennia, across all those civilizations, “marriage”
referred to only one relationship: the union of a man and a
woman. See ante, at 4; Tr. of Oral Arg. on Question 1,
p. 12 (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.” United States v.
Windsor, 570 U. S. ___, ___ (2013) (slip op., at 13).
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 lesbi-
Cite as: 576 U. S. ____ (2015) 5
ROBERTS, C. J., dissenting
ans. 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. See G. Quale, A History of
Marriage Systems 2 (1988); cf. M. Cicero, De Officiis 57
(W. Miller transl. 1913) (“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
6 OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
a man and a woman.” Ante, at 6. 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.
1 W. Blackstone, Commentaries *410; J. Locke,
Second Treatise of Civil Government §§78–79, p. 39 (J.
Gough ed. 1947). 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 100, 102 (R. George
& J. Elshtain eds. 2006).
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.” Windsor, 570 U. S., at ___ (slip op., at 17) (quoting
In re Burrus, 136 U. S. 586, 593–594 (1890)). 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. The
four States in these cases are typical. Their laws, before
and after statehood, have treated marriage as the union of
a man and a woman. See DeBoer v. Snyder, 772 F. 3d 388,
396–399 (CA6 2014). Even when state laws did not specify
this definition expressly, no one doubted what they
meant. See Jones v. Hallahan, 501 S. W. 2d 588, 589 (Ky.
App. 1973). The meaning of “marriage” went without
saying.
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
Cite as: 576 U. S. ____ (2015) 7
ROBERTS, C. J., dissenting
maintenance and education of children.” 1 An American
Dictionary of the English Language (1828). An influential
19th-century 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.” J. Bishop, Commentaries on the Law of
Marriage and Divorce 25 (1852). The first edition of
Black’s Law Dictionary defined marriage as “the civil
status of one man and one woman united in law for life.”
Black’s Law Dictionary 756 (1891) (emphasis deleted).
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,”
Murphy v. Ramsey, 114 U. S. 15, 45 (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. Loving v. Virginia, 388 U. S. 1, 12
(1967); see Skinner v. Oklahoma ex rel. Williamson, 316
U. S. 535, 541 (1942). More recent cases have directly
connected the right to marry with the “right to procreate.”
Zablocki v. Redhail, 434 U. S. 374, 386 (1978).
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.
8 OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
Loving, 388 U. S., at 6–7.
The majority observes that these developments “were
not mere superficial changes” in marriage, but rather
“worked deep transformations in its structure.” Ante, at
6–7. 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.
Ante, at 6.
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 v. Nelson, 409 U. S. 810 (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
Cite as: 576 U. S. ____ (2015) 9
ROBERTS, C. J., dissenting
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.” 772 F. 3d, at 396, 403. 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.
See Tr. of Oral Arg. on Question 1, at 38–39. The majority
nevertheless resolves these cases for petitioners based
10 OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
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. 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.
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.
See ante, at 3, 14. 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.” Reno v. Flores, 507 U. S. 292, 302
(1993). 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. Snyder v. Massachusetts, 291
Cite as: 576 U. S. ____ (2015) 11
ROBERTS, C. J., dissenting
U. S. 97, 105 (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.” Washington v. Glucksberg, 521 U. S. 702, 720
(1997) (internal quotation marks omitted); see Kennedy,
Unenumerated Rights and the Dictates of Judicial Restraint
13 (1986) (Address at Stanford) (“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,
19 How. 393 (1857). There the Court invalidated the
Missouri Compromise on the ground that legislation restricting
the institution of slavery violated the implied
rights of slaveholders.
more here http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf