The 5-to-4 decision, written by Justice Anthony Kennedy, was joined by Justices Elena Kagan, Sonia Sotomajor, Ruth Bader Ginsburg and Stephen Breyer. Dissents were written by Chief Justice John Roberts and Justices Clarence Thomas, Antonin Scalia and Samuel Alito.
Here are key excerpts from Kennedy’s deciding opinion and several dissents to put the case and its arguments in perspective.
A dramatic and revelatory opening
“The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.”
This is how Kennedy opens the majority opinion, and his stance in framing the case is important. He equates “identity” with “liberty.” Liberty is explicitly protected under the Equal Protection Clause of the 14th Amendment and by linking liberty to identity, Kennedy begins to set up his argument that same-sex marriage should be protected by the Constitution.
A stinging dissent from the chief justice
“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.”
In dissent, Roberts argues that issues of gay marriage should be left up to legislatures and the political process — and they should not be decided by courts. He raises no legal objection to gay marriage, but rather insists that legalizing it or banning it is an act of social change that should occur only through the democratic process.
Not a judgement on gay marriage — or is it?
“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.”
Roberts repeatedly writes that the case was not about same-sex marriage. He argues it’s about a court’s right to change state law on an issue that he thinks should be controlled by the states. Where Kennedy sees a constitutional violation of rights of gay Americans, Roberts sees a violation of rights of American voters who chose to ban gay marriage. If they want to allow it, he writes, they should vote to do it.
An “unrepresentative” court
Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.
The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
Scalia took issue with the fact that his fellow justices are making social policy from the bench — not acting as jurists, in his view — even though they hardly represent America. He points out that they all got law degrees from Harvard or Yale or grew up on the coasts. None of them are evangelical Christians or even “a Protestant of any determination.” It is a striking attack on, in Scalia’s words, the “unrepresentative” biographies of the nine men and women on the Supreme Court. A New Jersey-born Catholic educated at Georgetown and Harvard, he necessarily would be among this group.
Read six more key lines here.