Marriage

For those of you who'd like to read the decision instead of the commentary. The ruling is that no state may prohibit same-sex marriages; as a natural consequence, each state must recognize same-sex marriages authorized by other states. The right to same-sex marriages is ruled a fundamental right, with which (under the 14th amendment) the states cannot interfere without due process of law. (The Fifth Amendment places the equivalent restriction on the federal government.)

I would call it a privacy-penumbra case, squarely in line with Griswold v. Connecticut, which forbad the state to interfere in a married couple's decision to use contraception.  That is, it seems to be based less on identity politics than on limiting the government's right to interfere in intensely private intimate relations--but maybe that's just the part of the reasoning that resonates best with me.  Bear in mind also that it is a restriction on state power, not a prohibition of individual discrimination, which is a creature of statute.  That is a controversy that will continue to rage, especially since this decision neither expressed nor disavowed a First Amendment ground for refusing to participate in a wedding ceremony that violates one's religious convictions.  The Court did say that religious institutions have a first amendment right to advocate against same sex marriage. Roberts is leery of protections that are limited to advocacy: "The First Amendment guarantees, however, the freedom to 'exercise' religion. Ominously, that is not a word the majority uses." What will happen, he wonders, "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"?  Alito echoed these concerns, but mostly in terms of a fear of branding opponents as bigots unless they confined their opposition to private whispers.

Roberts read aloud a dissent in which he appeared to welcome gay marriage but deplore the decision to get there by judicial fiat rather than democratic process. (Those of us with memories extending beyond 24 hours may be amused by this comment from Justice Roberts: "But this Court is not a legislature.") In contrast, the majority opinion stated "While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right." Roberts also makes the slippery-slope argument: "It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage."

Scalia read aloud a dissent that was dripping with contempt for the legal reasoning of the majority:

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.

Thomas balked at including homosexuality within "life, liberty, or property," and scoffed at the sloppy grafting of due-process on equal-protection jurisprudence by means of the dreaded "synergy."