Obergefell v. Hodges

Chief Justice Roberts dissented, arguing that the Chief Justice agreed that the petitioners made powerful arguments based on fairness and social policy, but maintained that the Court’s task was to decide what the Constitution requires, not whether same-sex marriage is wise or desirable. In his view, the Constitution leaves the definition of marriage to the people of each State acting through democratic institutions.

He argued that the fundamental-right-to-marry precedents did not support the majority’s result. Loving, Zablocki, and Turner invalidated particular barriers to marriage as traditionally defined—the union of a man and a woman—but did not create a right to require a State to alter that definition. The historical connection between marriage, procreation, and childrearing, he concluded, supplied a rational basis for retaining the traditional definition.

The Chief Justice criticized the majority’s substantive-due-process methodology as insufficiently constrained by history and tradition. He argued that recognizing an unenumerated right not deeply rooted in the Nation’s history risks repeating the error of Lochner, in which judges converted personal policy preferences into constitutional law.

He also found the majority’s equal protection analysis unclear and incomplete. In his view, preserving the traditional institution of marriage was at least a legitimate state interest rationally related to distinguishing opposite-sex from same-sex couples. The decision, he warned, improperly ended an ongoing democratic debate and raised serious future questions about religious liberty.

Justice Scalia joined the Chief Justice’s dissent but wrote separately to emphasize institutional legitimacy. He argued that the Fourteenth Amendment was not understood at ratification to prohibit States from limiting marriage to opposite-sex couples, a practice then universal and uncontroversial. Therefore, he concluded, the issue should remain within the political process.

He characterized the majority’s approach as an assertion of legislative power by unelected judges. In his view, the Court relied on its own “reasoned judgment” about liberty rather than on a constitutional rule adopted by the people, thereby depriving citizens of the liberty of self-government.

Justice Scalia also sharply criticized the majority opinion’s language and method. He contended that its broad references to dignity, autonomy, and evolving liberty did not furnish judicially manageable legal limits, and that this style of reasoning would damage the Court’s reputation for disciplined legal analysis.

Justice Thomas argued that the Due Process Clause protects process before a deprivation of life, liberty, or property; it is not a source of substantive rights selected by judges. He maintained that substantive due process permits judges to roam beyond the constitutional text and displace democratic decisions with their own views of fundamental rights.

He further argued that “liberty,” as originally understood in the Due Process Clauses, meant at most freedom from physical restraint and, more broadly, freedom from government interference. The States had not prohibited same-sex couples from living together, engaging in intimate conduct, holding private or religious ceremonies, raising children, or traveling. Rather, they had declined to confer government recognition and benefits, which he regarded as an entitlement rather than a deprivation of liberty.

In Justice Thomas’s view, the majority wrongly treated government recognition as the source of human dignity. Dignity is innate, not bestowed or withdrawn by the State; people denied government benefits do not thereby lose it. He also warned that removing the issue from political debate threatened both democratic self-rule and religious liberty.

Justice Alito argued that a same-sex-marriage right was neither stated in the Constitution nor deeply rooted in the Nation’s history and tradition, as the Court’s substantive-due-process precedents require. He viewed the majority as recognizing a new right simply because a majority of Justices considered it fundamental.

He maintained that the Court’s conclusion depended on a contested understanding of marriage. The majority emphasized marriage’s role in advancing the happiness and security of spouses, while States defending traditional marriage emphasized its relationship to potentially procreative conduct and the goal of encouraging mothers and fathers to raise children in stable family units. Because reasonable people could disagree about the institution’s purpose and its future consequences, he argued that the Constitution left the question to the States.

Justice Alito warned that the decision would marginalize citizens who continue to hold traditional views of marriage and could place religious-liberty protections under pressure. More broadly, he feared that allowing a bare judicial majority to create new constitutional rights based on its own conception of liberty would erode limits on judicial power.