By Michael Arnheim

This landmark 5–4 U.S. Supreme Court decision legalized same-sex marriage throughout the United States and its possessions and territories. It marked the culmination of a long battle fought out in a number of states, 37 of which, plus the District of Columbia, had legalized gay marriage prior to the ruling and 13 of which had banned it. The majority opinion, penned by Justice Anthony Kennedy, held that state laws banning same-sex marriage were a violation of the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. Kennedy concluded, referring to the petitioners: “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Chief Justice Roberts and Justices Scalia, Thomas, and Alito put in a strong dissent. Justice Scalia attacked the thinking, analysis, and legal reasoning of the majority, which he likened to “the mystical aphorisms of the fortune cookie.” Justice Alito wrote: “Neither petitioners nor the majority cites a single case or other legal source providing any basis for such a constitutional right [as that of same-sex marriage]. None exists, and that is enough to foreclose their claim.” Chief Justice Roberts specifically attacked what he called the 5-justice majority’s “extravagant conception of judicial supremacy.” He added: “Allowing unelected federal judges to select which unenumerated rights rank as ‘fundamental’ — and to strike down state laws on the basis of that determination — raises obvious concerns about the judicial role.” Referring to the Founders’ struggle “for the precious right to govern themselves,” he added: “They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges … The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people.” The Chief Justice concluded his vigorous dissent by sounding a warning that the legalization of same-sex marriage could endanger religious liberty: “Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is — unlike the right imagined by the majority — actually spelled out in the Constitution.”