The marriage case was a rare one in which every single justice in the minority wrote their own dissent, then joined in the other dissents as well. It seems they really wanted to get their views on the record. I want to take a look at some of those dissents and the sometimes laughable arguments they present, starting with the primary dissent from Chief Justice Roberts.
Roberts frames his entire dissent in the language of judicial discretion, acknowledging that there are strong arguments for allowing same-sex couples to marry but saying that these are arguments for legislators to decide on, not judges. His dissent begins:
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 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.
If your irony meter just exploded, it may be because the language he uses here is virtually identical to the language Justice Scalia used just one day earlier in his dissent in the Obamacare case, arguing that Roberts was ignoring such judicial discretion to legislate from the bench rather than to merely interpret the Constitution. Of course, this language is notoriously slippery and hypocritical. Everyone is in favor of judicial discretion and an opponent of judicial activism when they support the policy in question, and everyone demands the exact opposite when they disagree with the policy in question.
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.
This is where his argument goes off the rails. Every single claim in that paragraph was also used against the ruling in Loving v Virginia, which I guarantee you CJ Roberts would not dispute was an absolutely correct ruling (even Scalia thinks it was rightly decided, though he has to engage in massive hypocrisy to reach that conclusion, as Roberts does here). If the “fundamental right to marry does not include a right to make a State change its definition of marriage,” then Loving has to be wrong because it did, in fact, make the states change their definitions of marriage. If the “people of a State are free to expand marriage to include same-sex
couples, or to retain the historic definition,” then Loving has to be wrong because it refused to allow the people of a state to retain their historic definition of marriage as solely between those of the same race.
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.
Again, let’s look at the comparison to Loving. Prior to that ruling, the federal courts had repeatedly refused to overturn state laws banning interracial marriage. And in the 25 years or so leading up to it, a couple dozen states had repealed their bans through the democratic process. Only 16 states still had such bans in 1967. But did the court striking down the remaining bans “make a dramatic social change that much more difficult to accept”? No. In fact, it spurred even faster change in public opinion. This ruling will do exactly the same. The notion that court rulings lead to entrenchment because people feel their democratic rights have been violated simply is not supported by history. Court rulings both react to and spur on changes in public opinion, as they did not only in Loving but in Brown v Board of Education and many more important advances in social justice and equality.