Same-Sex Marriage Is a Right, Supreme Court Rules

Roberts:

- "[T]his 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 fundamental right to marry does not include a right to make a State change its definition of marriage."

- "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."

- "It is important to note with precision which laws petitioners have challenged. Although they discuss some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. The equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits."

Scalia:

- "This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves."

- "We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue. But the Court ends this debate, in an opinion lacking even a thin veneer of law."

Thomas:

- "[T]he majority invokes our Constitution in the name of a 'liberty' that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government."

- "Whether we define 'liberty' as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it. Petitioners cannot claim, under the most plausible definition of 'liberty,' that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace."

Alito:

- "The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State."

- "To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that 'liberty' under the Due Process Clause should be understood to protect only those rights that are 'deeply rooted in this Nation’s history and tradition.’ ...And it is beyond dispute that the right to same-sex marriage is not among those rights."

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Disclaimer, IANAL - just picked the quotes that stuck out at me in each dissent.

Roberts' and Scalia's central theme was the Court overstepping its bounds and ending the legislative process prematurely. To me Roberts was essentially saying, "You guys are winning this on the legislative front easily, this is not something SCOTUS needs to decide." Thomas' was pretty cryptic and relied on lots of quotes from 18th and 19th century thinkers to define "liberty." Alito appealed to tradition and worried about this outcome producing a rush of lawsuits from religious institutions who were left in a limbo by the decision; he would have preferred state or national legislation that could clarify how this affected religious schools and such.

That's one of those assertions that relies on present-day society always believing they are more socially advanced than earlier ages, and that society moves forward monotonically in lock step around the world.

In fact, modern American society is a lot more prudish about same-sex unions of various types than earlier societies in Rome, Greece, and China at various times. It's very likely that one could find contemporaries of the authors of our Constitution, in comparable circumstances of economic and cultural development, who thought same sex unions are perfectly OK.

The men of 1789 who wrote the Constitution wrote a document they aspired to. Pretty obviously in the case of slavery, but in many other ways.

They explicitly said they could not enumerate rights. If you think otherwise, I'd like to know what you think of the following:

If someone invented a brain accelerator that imparted god-like intelligence, would you have a right to use it, or would the government grant such a right?

If someone cured old age, would you have a right to access that cure? Or would government have a say in this novel, unprecedented thing?

If someone invented an unbreakable code, would you have a right to what amounts to an uncrackable safe for your "documents and effects?"

If someone invented a personal spaceship, would you have a right to go to space, assuming you could do it without endangering others?

That's incorrect. The difference is critical as it pertains to discrimination against a certain type of persons. Prohibition of gay marriage means "this type of person cannot marry that type of person"; this is a restriction based on type of person. Contrast that with prohibition of polyamorous marriage which means "a person can marry up to one other person"; this is a restriction based on a factor that is detached from any individual members of the union, making each individual interchangeable with regard to the application of the law.

> The trait of whom you choose as a partner.

Prohibition of poly-marriage has nothing to do with whom you choose as a partner. There is no whom, the only factor is how many, a quality completely detached from the qualities of any individual.

> The trait of the structure of your union.

The structure of one's union is not a trait of an individual.

The difference is even more obvious when you ask yourself what type of information is necessary in order to enforce prohibition of either type of marriage. Here's a thought experiment that makes the difference even more explicit. Given the pseudo-schema below, consider the difference between the queries you'd need to write in order to return all poly unions vs all gay unions.

    persons_table:  person_id, name, age, sex
    marriage_table: marriage_id, person_id