Supreme Opinion

Chief Justice John Roberts of the Supreme Court of the United States has so convincingly explained his reasons for dissenting from the recently published Obergfell vs. Hodges decision legalizing same sex marriage in the United States that I think everyone ought to read it, whether he or she agrees with the decision or not. Below I quote a snippet from the text of his dissenting opinion, with whom Justices Scalia and Thomas joined. Roberts says:

“Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.”

Here is the beginning of the opinion.

Cite as: 576 U. S. ____ (2015) 1

ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES

Nos. 14–556, 14-562, 14-571 and 14–574 JAMES OBERGEFELL, ET AL., PETITIONERS 14–556 v. RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL.; VALERIA TANCO, ET AL., PETITIONERS 14–562 v. BILL HASLAM, GOVERNOR OF TENNESSEE, ET AL.; APRIL DEBOER, ET AL., PETITIONERS 14–571 v. RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL.; AND GREGORY BOURKE, ET AL., PETITIONERS 14–574 v. STEVE BESHEAR, GOVERNOR OF KENTUCKY ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT [June 26, 2015]

CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.

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 2 OBERGEFELL v. HODGES ROBERTS, C. J., dissenting 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. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered).

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.

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. Cite as: 576 U. S. ____ (2015) 3 ROBERTS, C. J., dissenting The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the 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?

To read the rest of the dissenting opinion, go to

<http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf.>

Scroll past the Syllabus (5 pp.) and the Opinion of the Court, etc. (the majority opinion) (34 pp.)

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