"Just who do we think we are?" Chief Justice Roberts asks.

Let's move on to the Chief Justice Roberts dissenting opinion in Obergefell.  The Chief annoyed a lot of conservatives yesterday, saving Obamacare, so maybe he'll win some righties back today. I thought there was a chance that the Chief would join Kennedy and vote with the liberals. But he didn't. Let's look at why.

He begins: "Petitioners make strong arguments rooted in social policy and considerations of fairness." But that fairness only reaches the policy level. It's for the legislatures. It's not a constitutional right.

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.

So he's coming down hard on the "definition" argument, which I've always disliked. The legal issue isn't over who gets to define words, it's about how government can treat people. Government needs at least a legitimate interest for excluding same-sex couples from the various benefits of the status of marriage, which it maintains in the legal system. Government needs at least a legitimate interest for everything it does. (Oddly, the words "legitimate" and "interest" appear nowhere in any of the Obergefell opinions!)[ADDED: The word "interest" does appear (twice) but not in reference to the government's interest.]

[T]he 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?

That ignores — for the moment — the majority's argument that marriage has not stayed the same over time. (Justice Kennedy wrote that "The history of marriage is one of both continuity and change," and cited many examples of evolution in the institution, notably the changes in "the role and status of women," who under the doctrine of coverture were regarded as part of "a single, male-dominated legal entity.")

The Chief tells us that the "premises supporting this concept of marriage are so fundamental that they rarely require articulation." Only male-female sex produces children, and a children are better off (usually) if their parents stay together:

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.

That brings up a couple ways marriage has changed: We don't restrict sex to married couples. And we let married people divorce pretty easily. 

[B]y bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without.

Maybe there's some effect to that, but what good is achievable by excluding others from marriage? Do you need nonprocreative couples to be disrespected so the procreatives can feel especially good about themselves? Who marries for that reason?

The Chief does get around to the majority's argument that marriage has changed over time. But, he says, these changes did not reach "the core structure of marriage as the union between a man and a woman.... 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." How does he know what part of the meaning of marriage is the "core"? Why are judges able to do that and not make decisions about other things that require judgment?

The Chief mentioned the 4 "principles and traditions" that the majority found in the due process precedents but didn't go through them one by one. (You can see them discussed one by one in my earlier post, here.) He just says the majority’s approach is "unprincipled" and belongs in the junkpile of "discredited" decisions labeled Lochner.

There's no enumerated right — "no 'Companionship and Understanding' or 'Nobility and Dignity' Clause in the Constitution." The Due Process Clause it refers to "liberty," but in the context of referring to "process," so, Roberts says, judges should be circumspect about ranking some liberties as "fundamental" and protecting them in ways that go beyond good-enough process.  Roberts doesn't reject all of substantive due process case law — the right of privacy precedent —  but he cautions restraint and demands historical analysis — not philosophy that isn't "deeply rooted in this Nation’s history and tradition." 

The Chief distinguishes the right to same-sex marriage from everything else in the privacy precedents:

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.... [T]he privacy cases provide no support for the majority’s position, because petitioners do not seek privacy.

The Chief Justice drums up alarm by predicting a new right to polygamous marriage: "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." Why should children in polygamous families "suffer the stigma of knowing their families are somehow lesser"? He cites a 5-year-old Newsweek article that estimates that there are 500,000 "polyamorous" families in the United States. (Here's my 2006 blog post about distinguishing same-sex and polygamous marriage.)

The Chief moves on to equal protection and says something I quite agree with:

The majority does not seriously engage with this claim. Its discussion is, quite frankly, difficult to follow. The central point seems to be that there is a “synergy between” the Equal Protection Clause and the Due Process Clause, and that some precedents relying on one Clause have also relied on the other. Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases....

There's none of the usual equal protection doctrine in the majority opinion, no discussion of the level of scrutiny or what the supposed "legitimate state interest" is. I think equal protection should have been easy. Just say there is no legitimate state interest in excluding gay couples from marriage. But no. The majority used what Roberts called "the 'harm principle'" that "sounds more in philosophy than law."

There follows a long section on the value of democracy and the problem of unelected judges deciding too many things. There are some good sentences here, but it's quite repetitious!

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.

But this does seem to be the sort of thing courts usually decide. And I think people will accept it quite readily. In fact, I think the overall reaction will be one of relief that we don't have to keep chewing over this issue. Let people get back to their personal relationships that were always going on anyway. The country wasn't collapsing because gay people love each other and seek the legal aspects of permanence. This isn't like Roe v. Wade — there are no unborns to save — though the Chief Justice adverts to Roe v. Wade at this point:

As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985) (footnote omitted).

It's memorable and important that Justice Ruth Bader Ginsburg said that. I appreciate that citation, and, in fact, I think there should have been more discussion of abortion rights in Obergefell. The word "abortion" doesn't even occur in the entire text of the 5 opinions. Roberts brought it up but hid it under the neutralizing phrase "another issue." It's the right that dare not speak its name.