One day after "saving" the Affordable Care Act for a second time by deferring to the original intent of its drafters against the hostile nitpicking of Republicans, Chief Justice Roberts issues a vehement dissent against the majority in Obergefell v. Hodges, the case whose resolution strikes down the remaining state laws against same-sex marriage. Roberts, a George W. Bush appointee and possibly that President's most interesting legacy, is clearly something different from the Court's three more ideological conservatives, who predictably join him in dissent today. Because Roberts isn't as predictable as Scalia, Thomas or Alito, we should pay some attention to his dissent. The majority, guided by Justice Kennedy, the main swing-voter on the panel, recognizes a right to marriage for any consenting adult in the language of the Fourteenth Amendment. Because the right to marriage is in the Constitution, it isn't subject to legislation limiting which consenting adults may marry. Homosexual couples are as entitled to marriage under the Constitution as interracial couples are. In dissent, Roberts is careful not to pass judgment on the idea of gay marriage. He claims that the majority has gone further than their predecessors did in Loving v. Virginia, the case that struck down laws against interracial marriage, and further than the Fourteenth Amendment permits. In Loving, Roberts writes, "the Court held that racial restrictions on the right to marry lacked a compelling justification." It "did not change what a marriage was any more than integrating schools changed what a school was." Obergefell overreaches, in the Chief Justice's opinion, because it does change what marriage is and does so undemocratically. We're still in a transitional moment in which some say the Court majority is bowing to public opinion today, while others believe the majority is defying public opinion. Either way, Roberts and the other dissenters disclaim their right as the Supreme Court to define what marriage is. Their implicit argument is that, given how long tradition has defined marriage as one man, one woman, that definition should not be changed by judiciary fiat. The deeper assumption is that the Fourteenth Amendment neither itself changes the definition nor empowers the Court to compel the states to change their several definitions. To Roberts, Obergefell is no more than an act of political will, with a majority of justices imposing their policy preferences on the minority and the states. Interestingly, he repeatedly compares Obergefell with Lochner v. New York, the infamous case in which the 1905 Court struck down a ten-hour day labor law for violating a "liberty of contract" implicit in the Fourteenth Amendment. That decision was criticized by its minority as reading policy preferences (for business, against organized labor) into the Constitution, and Roberts believes the Obergefell majority is doing the same thing. To him, gay marriage, whatever its moral or social value, remains a policy preference rather than a fundamental right.
Roberts's fundamental question is a fair one: who gets to define what marriage is? His answer is: the states, through their elected legislators. The Obergefell majority says, in effect, that marriage falls under "due process," and that the Fourteenth Amendment defines due process in a way that forbids the states from denying marriage rights to same-sex couples. The tiebreaker question is whether anyone is entitled to read the "traditional" definition of marriage into the language of the Fourteenth Amendment. Roberts believes that any "due process" right to marriage defaults to traditional man-woman marriage, and argues implicitly that changing the definition of marriage itself requires the due processes of elections and legislation. That's a conservative argument in a time of moral revolution aimed at purging all social and cultural disapproval of homosexuality. Roberts doesn't choose to dispute whether that revolution has a laudable goal, but he seeks to impose a limit on it. Revolutions are notoriously disrespectful of due process, but in this case is anyone entitled to enact the revolution by fiat? Does the Court itself have an implicit power either to define what marriage is or to deny that power to the state and federal governments? If there should be one rule for all the states, should we make it more explicit through a constitutional amendment or a federal law, or do we accept the Obergefell assumption that the Fourteenth Amendment has already decided the issue? On gay rights my position is that no one has the moral right anymore to say, or legislate on the assumption, that homosexuality is "wrong." But do I or five justices of the Supreme Court have the constitutional authority to back that up, or should we get the true opinion of the American people, if not on the rightness or wrongness of homosexuality then on whether our government should recognize homosexual pairs as married couples? Since we know that the consensus once opposed the idea, must we formally overrule the old consensus, or can we interpret existing law, as the majority has, to say the consensus was wrong all along? The simple answer is that the majority is the Supreme Court, and their word goes. Court opinions often raise questions revealing the tension between democracy and constitutionalism. Controversial decisions like Obergefell don't merely beg the question of what marriage is. They compel us to clarify for ourselves what the rule of law is, and on occasions like these controversy is a good thing.