Obergefell v. Hodges

(Slip Opinion) OCTOBER TERM, 2014 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO
DEPARTMENT OF HEALTH, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 14–556. Argued April 28, 2015—Decided June 26, 2015*
Michigan, Kentucky, Ohio, and Tennessee define marriage as a union
between one man and one woman. The petitioners, 14 same-sex cou-
ples and two men whose same-sex partners are deceased, filed suits
in Federal District Courts in their home States, claiming that re-
spondent state officials violate the Fourteenth Amendment by deny-
ing them the right to marry or to have marriages lawfully performed
in another State given full recognition. Each District Court ruled in
petitioners’ favor, but the Sixth Circuit consolidated the cases and
reversed.
Held: The Fourteenth Amendment requires a State to license a mar-
riage between two people of the same sex and to recognize a marriage
between two people of the same sex when their marriage was lawful-
ly licensed and performed out-of-State. Pp. 3–28.
(a) Before turning to the governing principles and precedents, it is
appropriate to note the history of the subject now before the Court.
Pp. 3–10.
(1) The history of marriage as a union between two persons of
the opposite sex marks the beginning of these cases. To the respond-
ents, it would demean a timeless institution if marriage were extend-
ed to same-sex couples. But the petitioners, far from seeking to de-
value marriage, seek it for themselves because of their respect—and
need—for its privileges and responsibilities, as illustrated by the pe-
——————
* Together with No. 14–562, Tanco et al. v. Haslam, Governor of Ten-
nessee, et al., No. 14–571, DeBoer et al. v. Snyder, Governor of Michigan,
et al., and No. 14–574, Bourke et al. v. Beshear, Governor of Kentucky,
also on certiorari to the same court.
2 OBERGEFELL v. HODGES
Syllabus
titioners’ own experiences. Pp. 3–6.
(2) The history of marriage is one of both continuity and change.
Changes, such as the decline of arranged marriages and the aban-
donment of the law of coverture, have worked deep transformations
in the structure of marriage, affecting aspects of marriage once
viewed as essential. These new insights have strengthened, not
weakened, the institution. Changed understandings of marriage are
characteristic of a Nation where new dimensions of freedom become
apparent to new generations.
This dynamic can be seen in the Nation’s experience with gay and
lesbian rights. Well into the 20th century, many States condemned
same-sex intimacy as immoral, and homosexuality was treated as an
illness. Later in the century, cultural and political developments al-
lowed same-sex couples to lead more open and public lives. Extensive
public and private dialogue followed, along with shifts in public atti-
tudes. Questions about the legal treatment of gays and lesbians soon
reached the courts, where they could be discussed in the formal dis-
course of the law. In 2003, this Court overruled its 1986 decision in
Bowers v. Hardwick, 478 U.S. 186, which upheld a Georgia law that
criminalized certain homosexual acts, concluding laws making same-
sex intimacy a crime “demea[n] the lives of homosexual persons.”
Lawrence v. Texas, 539 U.S. 558, 575. In 2012, the federal Defense
of Marriage Act was also struck down. United States v. Windsor, 570
U. S. ___. Numerous same-sex marriage cases reaching the federal
courts and state supreme courts have added to the dialogue. Pp. 6–
10.
(b) The Fourteenth Amendment requires a State to license a mar-
riage between two people of the same sex. Pp. 10–27.
(1) The fundamental liberties protected by the Fourteenth
Amendment’s Due Process Clause extend to certain personal choices
central to individual dignity and autonomy, including intimate choic-
es defining personal identity and beliefs. See, e.g., Eisenstadt v.
Baird, 405 U.S. 438, 453; Griswold v. Connecticut, 381 U.S. 479,
484–486. Courts must exercise reasoned judgment in identifying in-
terests of the person so fundamental that the State must accord them
its respect. History and tradition guide and discipline the inquiry
but do not set its outer boundaries. When new insight reveals dis-
cord between the Constitution’s central protections and a received le-
gal stricture, a claim to liberty must be addressed.
Applying these tenets, the Court has long held the right to marry is
protected by the Constitution. For example, Loving v. Virginia, 388
U.S. 1, 12, invalidated bans on interracial unions, and Turner v.
Safley, 482 U.S. 78, 95, held that prisoners could not be denied the
right to marry. To be sure, these cases presumed a relationship in-
Cite as: 576 U. S. ____ (2015) 3
Syllabus
volving opposite-sex partners, as did Baker v. Nelson, 409 U.S. 810, a
one-line summary decision issued in 1972, holding that the exclusion
of same-sex couples from marriage did not present a substantial fed-
eral question. But other, more instructive precedents have expressed
broader principles. See, e.g., Lawrence, supra, at 574. In assessing
whether the force and rationale of its cases apply to same-sex cou-
ples, the Court must respect the basic reasons why the right to marry
has been long protected. See, e.g., Eisenstadt, supra, at 453–454.
This analysis compels the conclusion that same-sex couples may ex-
ercise the right to marry. Pp. 10–12.
(2) Four principles and traditions demonstrate that the rea-
sons marriage is fundamental under the Constitution apply with
equal force to same-sex couples. The first premise of this Court’s rel-
evant precedents is that the right to personal choice regarding mar-
riage is inherent in the concept of individual autonomy. This abiding
connection between marriage and liberty is why Loving invalidated
interracial marriage bans under the Due Process Clause. See 388
U.S., at 12. Decisions about marriage are among the most intimate
that an individual can make. See Lawrence, supra, at 574. This is
true for all persons, whatever their sexual orientation.
A second principle in this Court’s jurisprudence is that the right to
marry is fundamental because it supports a two-person union unlike
any other in its importance to the committed individuals. The inti-
mate association protected by this right was central to Griswold v.
Connecticut, which held the Constitution protects the right of mar-
ried couples to use contraception, 381 U.S., at 485, and was acknowl-
edged in Turner, supra, at 95. Same-sex couples have the same right
as opposite-sex couples to enjoy intimate association, a right extend-
ing beyond mere freedom from laws making same-sex intimacy a
criminal offense. See Lawrence, supra, at 567.
A third basis for protecting the right to marry is that it safeguards
children and families and thus draws meaning from related rights of
childrearing, procreation, and education. See, e.g., Pierce v. Society of
Sisters, 268 U.S. 510. Without the recognition, stability, and pre-
dictability marriage offers, children suffer the stigma of knowing
their families are somehow lesser. They also suffer the significant
material costs of being raised by unmarried parents, relegated to a
more difficult and uncertain family life. The marriage laws at issue
thus harm and humiliate the children of same-sex couples. See
Windsor, supra, at ___. This does not mean that the right to marry is
less meaningful for those who do not or cannot have children. Prece-
dent protects the right of a married couple not to procreate, so the
right to marry cannot be conditioned on the capacity or commitment
to procreate.
4 OBERGEFELL v. HODGES
Syllabus
Finally, this Court’s cases and the Nation’s traditions make clear
that marriage is a keystone of the Nation’s social order. See
Maynard v. Hill, 125 U.S. 190, 211. States have contributed to the
fundamental character of marriage by placing it at the center of
many facets of the legal and social order. There is no difference be-
tween same- and opposite-sex couples with respect to this principle,
yet same-sex couples are denied the constellation of benefits that the
States have linked to marriage and are consigned to an instability
many opposite-sex couples would find intolerable. It is demeaning to
lock same-sex couples out of a central institution of the Nation’s soci-
ety, for they too may aspire to the transcendent purposes of marriage.
The limitation of marriage to opposite-sex couples may long have
seemed natural and just, but its inconsistency with the central mean-
ing of the fundamental right to marry is now manifest. Pp. 12–18.
(3) The right of same-sex couples to marry is also derived from
the Fourteenth Amendment’s guarantee of equal protection. The Due
Process Clause and the Equal Protection Clause are connected in a
profound way. Rights implicit in liberty and rights secured by equal
protection may rest on different precepts and are not always co-
extensive, yet each may be instructive as to the meaning and reach of
the other. This dynamic is reflected in Loving, where the Court in-
voked both the Equal Protection Clause and the Due Process Clause;
and in Zablocki v. Redhail, 434 U.S. 374, where the Court invalidat-
ed a law barring fathers delinquent on child-support payments from
marrying. Indeed, recognizing that new insights and societal under-
standings can reveal unjustified inequality within fundamental insti-
tutions that once passed unnoticed and unchallenged, this Court has
invoked equal protection principles to invalidate laws imposing sex-
based inequality on marriage, see, e.g., Kirchberg v. Feenstra, 450
U.S. 455, 460–461, and confirmed the relation between liberty and
equality, see, e.g., M. L. B. v. S. L. J., 519 U.S. 102, 120–121.
The Court has acknowledged the interlocking nature of these con-
stitutional safeguards in the context of the legal treatment of gays
and lesbians. See Lawrence, 539 U.S., at 575. This dynamic also
applies to same-sex marriage. The challenged laws burden the liber-
ty of same-sex couples, and they abridge central precepts of equality.
The marriage laws at issue are in essence unequal: Same-sex couples
are denied benefits afforded opposite-sex couples and are barred from
exercising a fundamental right. Especially against a long history of
disapproval of their relationships, this denial works a grave and con-
tinuing harm, serving to disrespect and subordinate gays and lesbi-
ans. Pp. 18–22.
(4) The right to marry is a fundamental right inherent in the
liberty of the person, and under the Due Process and Equal Protec-
Cite as: 576 U. S. ____ (2015) 5
Syllabus
tion Clauses of the Fourteenth Amendment couples of the same-sex
may not be deprived of that right and that liberty. Same-sex couples
may exercise the fundamental right to marry. Baker v. Nelson is
overruled. The State laws challenged by the petitioners in these cas-
es are held invalid to the extent they exclude same-sex couples from
civil marriage on the same terms and conditions as opposite-sex cou-
ples. Pp. 22–23.
(5) There may be an initial inclination to await further legisla-
tion, litigation, and debate, but referenda, legislative debates, and
grassroots campaigns; studies and other writings; and extensive liti-
gation in state and federal courts have led to an enhanced under-
standing of the issue. While the Constitution contemplates that de-
mocracy is the appropriate process for change, individuals who are
harmed need not await legislative action before asserting a funda-
mental right. Bowers, in effect, upheld state action that denied gays
and lesbians a fundamental right. Though it was eventually repudi-
ated, men and women suffered pain and humiliation in the interim,
and the effects of these injuries no doubt lingered long after Bowers
was overruled. A ruling against same-sex couples would have the
same effect and would be unjustified under the Fourteenth Amend-
ment. The petitioners’ stories show the urgency of the issue they
present to the Court, which has a duty to address these claims and
answer these questions. Respondents’ argument that allowing same-
sex couples to wed will harm marriage as an institution rests on a
counterintuitive view of opposite-sex couples’ decisions about mar-
riage and parenthood. Finally, the First Amendment ensures that
religions, those who adhere to religious doctrines, and others have
protection as they seek to teach the principles that are so fulfilling
and so central to their lives and faiths. Pp. 23–27.
(c) The Fourteenth Amendment requires States to recognize same-
sex marriages validly performed out of State. Since same-sex couples
may now exercise the fundamental right to marry in all States, there
is no lawful basis for a State to refuse to recognize a lawful same-sex
marriage performed in another State on the ground of its same-sex
character. Pp. 27–28.
772 F.3d 388, reversed.
KENNEDY, J., delivered the opinion of the Court, in which GINSBURG,
BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a
dissenting opinion, in which SCALIA and THOMAS, JJ., joined. SCALIA,
J., filed a dissenting opinion, in which THOMAS, J., joined. THOMAS, J.,
filed a dissenting opinion, in which SCALIA, J., joined. ALITO, J., filed a
dissenting opinion, in which SCALIA and THOMAS, JJ., joined.
Cite as: 576 U. S. ____ (2015) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
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]
JUSTICE KENNEDY delivered the opinion of the Court.
The Constitution promises liberty to all within its reach,
a liberty that includes certain specific rights that allow
2 OBERGEFELL v. HODGES
Opinion of the Court
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.
I
These cases come from Michigan, Kentucky, Ohio, and
Tennessee, States that define marriage as a union be-
tween one man and one woman. See, e.g., Mich. Const.,
Art. I, §25; Ky. Const. §233A; Ohio Rev. Code Ann.
§3101.01 (Lexis 2008); Tenn. Const., Art. XI, §18. The
petitioners are 14 same-sex couples and two men whose
same-sex partners are deceased. The respondents are
state officials responsible for enforcing the laws in ques-
tion. The petitioners claim the respondents violate the
Fourteenth Amendment by denying them the right to
marry or to have their marriages, lawfully performed in
another State, given full recognition.
Petitioners filed these suits in United States District
Courts in their home States. Each District Court ruled in
their favor. Citations to those cases are in Appendix A,
infra. The respondents appealed the decisions against
them to the United States Court of Appeals for the Sixth
Circuit. It consolidated the cases and reversed the judg-
ments of the District Courts. DeBoer v. Snyder, 772 F.3d
388 (2014). The Court of Appeals held that a State has no
constitutional obligation to license same-sex marriages or
to recognize same-sex marriages performed out of State.
The petitioners sought certiorari. This Court granted
review, limited to two questions. 574 U. S. ___ (2015).
The first, presented by the cases from Michigan and Ken-
tucky, is whether the Fourteenth Amendment requires a
State to license a marriage between two people of the
same sex. The second, presented by the cases from Ohio,
Cite as: 576 U. S. ____ (2015) 3
Opinion of the Court
Tennessee, and, again, Kentucky, is whether the Four-
teenth Amendment requires a State to recognize a same-
sex marriage licensed and performed in a State which does
grant that right.
II
Before addressing the principles and precedents that
govern these cases, it is appropriate to note the history of
the subject now before the Court.
A
From their beginning to their most recent page, the
annals of human history reveal the transcendent im-
portance of marriage. The lifelong union of a man and a
woman always has promised nobility and dignity to all
persons, without regard to their station in life. Marriage
is sacred to those who live by their religions and offers
unique fulfillment to those who find meaning in the secu-
lar realm. Its dynamic allows two people to find a life that
could not be found alone, for a marriage becomes greater
than just the two persons. Rising from the most basic
human needs, marriage is essential to our most profound
hopes and aspirations.
The centrality of marriage to the human condition
makes it unsurprising that the institution has existed for
millennia and across civilizations. Since the dawn of
history, marriage has transformed strangers into rela-
tives, binding families and societies together. Confucius
taught that marriage lies at the foundation of government.
2 Li Chi: Book of Rites 266 (C. Chai & W. Chai eds., J.
Legge transl. 1967). This wisdom was echoed centuries
later and half a world away by Cicero, who wrote, “The
first bond of society is marriage; next, children; and then
the family.” See De Officiis 57 (W. Miller transl. 1913).
There are untold references to the beauty of marriage in
religious and philosophical texts spanning time, cultures,
4 OBERGEFELL v. HODGES
Opinion of the Court
and faiths, as well as in art and literature in all their
forms. It is fair and necessary to say these references
were based on the understanding that marriage is a union
between two persons of the opposite sex.
That history is the beginning of these cases. The re-
spondents say it should be the end as well. To them, it
would demean a timeless institution if the concept and
lawful status of marriage were extended to two persons of
the same sex. Marriage, in their view, is by its nature a
gender-differentiated union of man and woman. This view
long has been held—and continues to be held—in good
faith by reasonable and sincere people here and through-
out the world.
The petitioners acknowledge this history but contend
that these cases cannot end there. Were their intent to
demean the revered idea and reality of marriage, the
petitioners’ claims would be of a different order. But that
is neither their purpose nor their submission. To the
contrary, it is the enduring importance of marriage that
underlies the petitioners’ contentions. This, they say, is
their whole point. Far from seeking to devalue marriage,
the petitioners seek it for themselves because of their
respect—and need—for its privileges and responsibilities.
And their immutable nature dictates that same-sex mar-
riage is their only real path to this profound commitment.
Recounting the circumstances of three of these cases
illustrates the urgency of the petitioners’ cause from their
perspective. Petitioner James Obergefell, a plaintiff in the
Ohio case, met John Arthur over two decades ago. They
fell in love and started a life together, establishing a last-
ing, committed relation. In 2011, however, Arthur was
diagnosed with amyotrophic lateral sclerosis, or ALS.
This debilitating disease is progressive, with no known
cure. Two years ago, Obergefell and Arthur decided to
commit to one another, resolving to marry before Arthur
died. To fulfill their mutual promise, they traveled from
Cite as: 576 U. S. ____ (2015) 5
Opinion of the Court
Ohio to Maryland, where same-sex marriage was legal. It
was difficult for Arthur to move, and so the couple were
wed inside a medical transport plane as it remained on the
tarmac in Baltimore. Three months later, Arthur died.
Ohio law does not permit Obergefell to be listed as the
surviving spouse on Arthur’s death certificate. By statute,
they must remain strangers even in death, a state-
imposed separation Obergefell deems “hurtful for the rest
of time.” App. in No. 14–556 etc., p. 38. He brought suit
to be shown as the surviving spouse on Arthur’s death
certificate.
April DeBoer and Jayne Rowse are co-plaintiffs in the
case from Michigan. They celebrated a commitment cere-
mony to honor their permanent relation in 2007. They
both work as nurses, DeBoer in a neonatal unit and Rowse
in an emergency unit. In 2009, DeBoer and Rowse fos-
tered and then adopted a baby boy. Later that same year,
they welcomed another son into their family. The new
baby, born prematurely and abandoned by his biological
mother, required around-the-clock care. The next year, a
baby girl with special needs joined their family. Michigan,
however, permits only opposite-sex married couples or
single individuals to adopt, so each child can have only one
woman as his or her legal parent. If an emergency were to
arise, schools and hospitals may treat the three children
as if they had only one parent. And, were tragedy to befall
either DeBoer or Rowse, the other would have no legal
rights over the children she had not been permitted to
adopt. This couple seeks relief from the continuing uncer-
tainty their unmarried status creates in their lives.
Army Reserve Sergeant First Class Ijpe DeKoe and his
partner Thomas Kostura, co-plaintiffs in the Tennessee
case, fell in love. In 2011, DeKoe received orders to deploy
to Afghanistan. Before leaving, he and Kostura married
in New York. A week later, DeKoe began his deployment,
which lasted for almost a year. When he returned, the two
6 OBERGEFELL v. HODGES
Opinion of the Court
settled in Tennessee, where DeKoe works full-time for the
Army Reserve. Their lawful marriage is stripped from
them whenever they reside in Tennessee, returning and
disappearing as they travel across state lines. DeKoe, who
served this Nation to preserve the freedom the Constitu-
tion protects, must endure a substantial burden.
The cases now before the Court involve other petitioners
as well, each with their own experiences. Their stories
reveal that they seek not to denigrate marriage but rather
to live their lives, or honor their spouses’ memory, joined
by its bond.
B
The ancient origins of marriage confirm its centrality,
but it has not stood in isolation from developments in law
and society. The history of marriage is one of both conti-
nuity and change. That institution—even as confined to
opposite-sex relations—has evolved over time.
For example, marriage was once viewed as an arrange-
ment by the couple’s parents based on political, religious,
and financial concerns; but by the time of the Nation’s
founding it was understood to be a voluntary contract
between a man and a woman. See N. Cott, Public Vows: A
History of Marriage and the Nation 9–17 (2000); S.
Coontz, Marriage, A History 15–16 (2005). As the role and
status of women changed, the institution further evolved.
Under the centuries-old doctrine of coverture, a married
man and woman were treated by the State as a single,
male-dominated legal entity. See 1 W. Blackstone, Com-
mentaries on the Laws of England 430 (1765). As women
gained legal, political, and property rights, and as society
began to understand that women have their own equal
dignity, the law of coverture was abandoned. See Brief for
Historians of Marriage et al. as Amici Curiae 16–19. These
and other developments in the institution of marriage over
the past centuries were not mere superficial changes.
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Opinion of the Court
Rather, they worked deep transformations in its structure,
affecting aspects of marriage long viewed by many as essen-
tial. See generally N. Cott, Public Vows; S. Coontz, Mar-
riage; H. Hartog, Man & Wife in America: A History (2000).
These new insights have strengthened, not weakened,
the institution of marriage. Indeed, changed understand-
ings of marriage are characteristic of a Nation where new
dimensions of freedom become apparent to new genera-
tions, often through perspectives that begin in pleas or
protests and then are considered in the political sphere
and the judicial process.
This dynamic can be seen in the Nation’s experiences
with the rights of gays and lesbians. Until the mid-20th
century, same-sex intimacy long had been condemned as
immoral by the state itself in most Western nations, a
belief often embodied in the criminal law. For this reason,
among others, many persons did not deem homosexuals to
have dignity in their own distinct identity. A truthful
declaration by same-sex couples of what was in their
hearts had to remain unspoken. Even when a greater
awareness of the humanity and integrity of homosexual
persons came in the period after World War II, the argu-
ment that gays and lesbians had a just claim to dignity
was in conflict with both law and widespread social con-
ventions. Same-sex intimacy remained a crime in many
States. Gays and lesbians were prohibited from most
government employment, barred from military service,
excluded under immigration laws, targeted by police, and
burdened in their rights to associate. See Brief for Organ-
ization of American Historians as Amicus Curiae 5–28.
For much of the 20th century, moreover, homosexuality
was treated as an illness. When the American Psychiatric
Association published the first Diagnostic and Statistical
Manual of Mental Disorders in 1952, homosexuality was
classified as a mental disorder, a position adhered to until
1973. See Position Statement on Homosexuality and Civil
8 OBERGEFELL v. HODGES
Opinion of the Court
Rights, 1973, in 131 Am. J. Psychiatry 497 (1974). Only in
more recent years have psychiatrists and others recog-
nized that sexual orientation is both a normal expression
of human sexuality and immutable. See Brief for Ameri-
can Psychological Association et al. as Amici Curiae 7–17.
In the late 20th century, following substantial cultural
and political developments, same-sex couples began to
lead more open and public lives and to establish families.
This development was followed by a quite extensive dis-
cussion of the issue in both governmental and private
sectors and by a shift in public attitudes toward greater
tolerance. As a result, questions about the rights of gays
and lesbians soon reached the courts, where the issue
could be discussed in the formal discourse of the law.
This Court first gave detailed consideration to the legal
status of homosexuals in Bowers v. Hardwick, 478 U.S.
186 (1986). There it upheld the constitutionality of a
Georgia law deemed to criminalize certain homosexual
acts. Ten years later, in Romer v. Evans, 517 U.S. 620
(1996), the Court invalidated an amendment to Colorado’s
Constitution that sought to foreclose any branch or politi-
cal subdivision of the State from protecting persons
against discrimination based on sexual orientation. Then,
in 2003, the Court overruled Bowers, holding that laws
making same-sex intimacy a crime “demea[n] the lives of
homosexual persons.” Lawrence v. Texas, 539 U.S. 558,
575.
Against this background, the legal question of same-sex
marriage arose. In 1993, the Hawaii Supreme Court held
Hawaii’s law restricting marriage to opposite-sex couples
constituted a classification on the basis of sex and was
therefore subject to strict scrutiny under the Hawaii Con-
stitution. Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44.
Although this decision did not mandate that same-sex
marriage be allowed, some States were concerned by its
implications and reaffirmed in their laws that marriage is
Cite as: 576 U. S. ____ (2015) 9
Opinion of the Court
defined as a union between opposite-sex partners. So too
in 1996, Congress passed the Defense of Marriage Act
(DOMA), 110 Stat. 2419, defining marriage for all federal-
law purposes as “only a legal union between one man and
one woman as husband and wife.” 1 U.S. C. §7.
The new and widespread discussion of the subject led
other States to a different conclusion. In 2003, the Su-
preme Judicial Court of Massachusetts held the State’s
Constitution guaranteed same-sex couples the right to
marry. See Goodridge v. Department of Public Health, 440
Mass. 309, 798 N.E.2d 941 (2003). After that ruling,
some additional States granted marriage rights to same-
sex couples, either through judicial or legislative proc-
esses. These decisions and statutes are cited in Appendix B,
infra. Two Terms ago, in United States v. Windsor, 570
U. S. ___ (2013), this Court invalidated DOMA to the
extent it barred the Federal Government from treating
same-sex marriages as valid even when they were lawful
in the State where they were licensed. DOMA, the Court
held, impermissibly disparaged those same-sex couples
“who wanted to affirm their commitment to one another
before their children, their family, their friends, and their
community.” Id., at ___ (slip op., at 14).
Numerous cases about same-sex marriage have reached
the United States Courts of Appeals in recent years. In
accordance with the judicial duty to base their decisions on
principled reasons and neutral discussions, without scorn-
ful or disparaging commentary, courts have written a
substantial body of law considering all sides of these is-
sues. That case law helps to explain and formulate the
underlying principles this Court now must consider. With
the exception of the opinion here under review and one
other, see Citizens for Equal Protection v. Bruning, 455
F.3d 859, 864–868 (CA8 2006), the Courts of Appeals
have held that excluding same-sex couples from marriage
violates the Constitution. There also have been many
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Opinion of the Court
thoughtful District Court decisions addressing same-sex
marriage—and most of them, too, have concluded same-
sex couples must be allowed to marry. In addition the
highest courts of many States have contributed to this
ongoing dialogue in decisions interpreting their own State
Constitutions. These state and federal judicial opinions
are cited in Appendix A, infra.
After years of litigation, legislation, referenda, and the
discussions that attended these public acts, the States are
now divided on the issue of same-sex marriage. See Office
of the Atty. Gen. of Maryland, The State of Marriage
Equality in America, State-by-State Supp. (2015).
III
Under the Due Process Clause of the Fourteenth
Amendment, no State shall “deprive any person of life,
liberty, or property, without due process of law.” The
fundamental liberties protected by this Clause include
most of the rights enumerated in the Bill of Rights. See
Duncan v. Louisiana, 391 U.S. 145, 147–149 (1968). In
addition these liberties extend to certain personal choices
central to individual dignity and autonomy, including
intimate choices that define personal identity and beliefs.
See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 453 (1972);
Griswold v. Connecticut, 381 U.S. 479, 484–486 (1965).
The identification and protection of fundamental rights
is an enduring part of the judicial duty to interpret the
Constitution. That responsibility, however, “has not been
reduced to any formula.” Poe v. Ullman, 367 U.S. 497,
542 (1961) (Harlan, J., dissenting). Rather, it requires
courts to exercise reasoned judgment in identifying inter-
ests of the person so fundamental that the State must
accord them its respect. See ibid. That process is guided
by many of the same considerations relevant to analysis of
other constitutional provisions that set forth broad princi-
ples rather than specific requirements. History and tradi-
Cite as: 576 U. S. ____ (2015) 11
Opinion of the Court
tion guide and discipline this inquiry but do not set its
outer boundaries. See Lawrence, supra, at 572. That
method respects our history and learns from it without
allowing the past alone to rule the present.
The nature of injustice is that we may not always see it
in our own times. The generations that wrote and ratified
the Bill of Rights and the Fourteenth Amendment did not
presume to know the extent of freedom in all of its dimen-
sions, and so they entrusted to future generations a char-
ter protecting the right of all persons to enjoy liberty as we
learn its meaning. When new insight reveals discord
between the Constitution’s central protections and a re-
ceived legal stricture, a claim to liberty must be addressed.
Applying these established tenets, the Court has long
held the right to marry is protected by the Constitution.
In Loving v. Virginia, 388 U.S. 1, 12 (1967), which invali-
dated bans on interracial unions, a unanimous Court held
marriage is “one of the vital personal rights essential to
the orderly pursuit of happiness by free men.” The Court
reaffirmed that holding in Zablocki v. Redhail, 434 U.S.
374, 384 (1978), which held the right to marry was bur-
dened by a law prohibiting fathers who were behind on
child support from marrying. The Court again applied
this principle in Turner v. Safley, 482 U.S. 78, 95 (1987),
which held the right to marry was abridged by regulations
limiting the privilege of prison inmates to marry. Over
time and in other contexts, the Court has reiterated that
the right to marry is fundamental under the Due Process
Clause. See, e.g., M. L. B. v. S. L. J., 519 U.S. 102, 116
(1996); Cleveland Bd. of Ed. v. LaFleur, 414 U.S. 632,
639–640 (1974); Griswold, supra, at 486; Skinner v. Okla-
homa ex rel. Williamson, 316 U.S. 535, 541 (1942); Meyer
v. Nebraska, 262 U.S. 390, 399 (1923).
It cannot be denied that this Court’s cases describing
the right to marry presumed a relationship involving
opposite-sex partners. The Court, like many institutions,
12 OBERGEFELL v. HODGES
Opinion of the Court
has made assumptions defined by the world and time of
which it is a part. This was evident in Baker v. Nelson,
409 U.S. 810, a one-line summary decision issued in 1972,
holding the exclusion of same-sex couples from marriage
did not present a substantial federal question.
Still, there are other, more instructive precedents. This
Court’s cases have expressed constitutional principles of
broader reach. In defining the right to marry these cases
have identified essential attributes of that right based in
history, tradition, and other constitutional liberties inher-
ent in this intimate bond. See, e.g., Lawrence, 539 U.S.,
at 574; Turner, supra, at 95; Zablocki, supra, at 384;
Loving, supra, at 12; Griswold, supra, at 486. And in
assessing whether the force and rationale of its cases
apply to same-sex couples, the Court must respect the
basic reasons why the right to marry has been long pro-
tected. See, e.g., Eisenstadt, supra, at 453–454; Poe, su-
pra, at 542–553 (Harlan, J., dissenting).
This analysis compels the conclusion that same-sex
couples may exercise the right to marry. The four princi-
ples and traditions to be discussed demonstrate that the
reasons marriage is fundamental under the Constitution
apply with equal force to same-sex couples.
A first premise of the Court’s relevant precedents is that
the right to personal choice regarding marriage is inherent
in the concept of individual autonomy. This abiding con-
nection between marriage and liberty is why Loving inval-
idated interracial marriage bans under the Due Process
Clause. See 388 U.S., at 12; see also Zablocki, supra, at
384 (observing Loving held “the right to marry is of fun-
damental importance for all individuals”). Like choices
concerning contraception, family relationships, procrea-
tion, and childrearing, all of which are protected by the
Constitution, decisions concerning marriage are among
the most intimate that an individual can make. See Law-
rence, supra, at 574. Indeed, the Court has noted it would
Cite as: 576 U. S. ____ (2015) 13
Opinion of the Court
be contradictory “to recognize a right of privacy with re-
spect to other matters of family life and not with respect to
the decision to enter the relationship that is the founda-
tion of the family in our society.” Zablocki, supra, at 386.
Choices about marriage shape an individual’s destiny.
As the Supreme Judicial Court of Massachusetts has
explained, because “it fulfils yearnings for security, safe
haven, and connection that express our common human-
ity, civil marriage is an esteemed institution, and the
decision whether and whom to marry is among life’s mo-
mentous acts of self-definition.” Goodridge, 440 Mass., at
322, 798 N.E. 2d, at 955.
The nature of marriage is that, through its enduring
bond, two persons together can find other freedoms, such
as expression, intimacy, and spirituality. This is true for
all persons, whatever their sexual orientation. See Wind-
sor, 570 U. S., at ___– ___ (slip op., at 22–23). There is
dignity in the bond between two men or two women who
seek to marry and in their autonomy to make such pro-
found choices. Cf. Loving, supra, at 12 (“[T]he freedom to
marry, or not marry, a person of another race resides with
the individual and cannot be infringed by the State”).
A second principle in this Court’s jurisprudence is that
the right to marry is fundamental because it supports a
two-person union unlike any other in its importance to the
committed individuals. This point was central to Griswold
v. Connecticut, which held the Constitution protects the
right of married couples to use contraception. 381 U.S., at
485. Suggesting that marriage is a right “older than the
Bill of Rights,” Griswold described marriage this way:
“Marriage is a coming together for better or for worse,
hopefully enduring, and intimate to the degree of be-
ing sacred. It is an association that promotes a way of
life, not causes; a harmony in living, not political
faiths; a bilateral loyalty, not commercial or social
14 OBERGEFELL v. HODGES
Opinion of the Court
projects. Yet it is an association for as noble a purpose
as any involved in our prior decisions. ” Id., at 486.
And in Turner, the Court again acknowledged the inti-
mate association protected by this right, holding prisoners
could not be denied the right to marry because their com-
mitted relationships satisfied the basic reasons why mar-
riage is a fundamental right. See 482 U.S., at 95–96. The
right to marry thus dignifies couples who “wish to define
themselves by their commitment to each other.” Windsor,
supra, at ___ (slip op., at 14). Marriage responds to the
universal fear that a lonely person might call out only to
find no one there. It offers the hope of companionship and
understanding and assurance that while both still live
there will be someone to care for the other.
As this Court held in Lawrence, same-sex couples have
the same right as opposite-sex couples to enjoy intimate
association. Lawrence invalidated laws that made same-
sex intimacy a criminal act. And it acknowledged that
“[w]hen sexuality finds overt expression in intimate con-
duct with another person, the conduct can be but one
element in a personal bond that is more enduring.” 539
U.S., at 567. But while Lawrence confirmed a dimension
of freedom that allows individuals to engage in intimate
association without criminal liability, it does not follow
that freedom stops there. Outlaw to outcast may be a step
forward, but it does not achieve the full promise of liberty.
A third basis for protecting the right to marry is that it
safeguards children and families and thus draws meaning
from related rights of childrearing, procreation, and edu-
cation. See Pierce v. Society of Sisters, 268 U.S. 510
(1925); Meyer, 262 U.S., at 399. The Court has recognized
these connections by describing the varied rights as a
unified whole: “[T]he right to ‘marry, establish a home and
bring up children’ is a central part of the liberty protected
by the Due Process Clause.” Zablocki, 434 U.S., at 384
 Cite as: 576 U. S. ____ (2015) 15
Opinion of the Court
(quoting Meyer, supra, at 399). Under the laws of the
several States, some of marriage’s protections for children
and families are material. But marriage also confers more
profound benefits. By giving recognition and legal struc-
ture to their parents’ relationship, marriage allows chil-
dren “to understand the integrity and closeness of their
own family and its concord with other families in their
community and in their daily lives.” Windsor, supra, at
___ (slip op., at 23). Marriage also affords the permanency
and stability important to children’s best interests. See
Brief for Scholars of the Constitutional Rights of Children
as Amici Curiae 22–27.
As all parties agree, many same-sex couples provide
loving and nurturing homes to their children, whether
biological or adopted. And hundreds of thousands of chil-
dren are presently being raised by such couples. See Brief
for Gary J. Gates as Amicus Curiae 4. Most States have
allowed gays and lesbians to adopt, either as individuals
or as couples, and many adopted and foster children have
same-sex parents, see id., at 5. This provides powerful
confirmation from the law itself that gays and lesbians can
create loving, supportive families.
Excluding same-sex couples from marriage thus con-
flicts with a central premise of the right to marry. With-
out the recognition, stability, and predictability marriage
offers, their children suffer the stigma of knowing their
families are somehow lesser. They also suffer the signifi-
cant material costs of being raised by unmarried parents,
relegated through no fault of their own to a more difficult
and uncertain family life. The marriage laws at issue here
thus harm and humiliate the children of same-sex couples.
See Windsor, supra, at ___ (slip op., at 23).
That is not to say the right to marry is less meaningful
for those who do not or cannot have children. An ability,
desire, or promise to procreate is not and has not been a
prerequisite for a valid marriage in any State. In light of
16 OBERGEFELL v. HODGES
Opinion of the Court
precedent protecting the right of a married couple not to
procreate, it cannot be said the Court or the States have
conditioned the right to marry on the capacity or commit-
ment to procreate. The constitutional marriage right has
many aspects, of which childbearing is only one.
Fourth and finally, this Court’s cases and the Nation’s
traditions make clear that marriage is a keystone of our
social order. Alexis de Tocqueville recognized this truth
on his travels through the United States almost two cen-
turies ago:
“There is certainly no country in the world where the
tie of marriage is so much respected as in America . . .
[W]hen the American retires from the turmoil of pub-
lic life to the bosom of his family, he finds in it the im-
age of order and of peace . . . . [H]e afterwards carries
[that image] with him into public affairs.” 1 Democ-
racy in America 309 (H. Reeve transl., rev. ed. 1990).
In Maynard v. Hill, 125 U.S. 190, 211 (1888), the Court
echoed de Tocqueville, explaining that marriage is “the
foundation of the family and of society, without which
there would be neither civilization nor progress.” Mar-
riage, the Maynard Court said, has long been “ ‘a great
public institution, giving character to our whole civil
polity.’ ” Id., at 213. This idea has been reiterated even as
the institution has evolved in substantial ways over time,
superseding rules related to parental consent, gender, and
race once thought by many to be essential. See generally
N. Cott, Public Vows. Marriage remains a building block
of our national community.
For that reason, just as a couple vows to support each
other, so does society pledge to support the couple, offering
symbolic recognition and material benefits to protect and
nourish the union. Indeed, while the States are in general
free to vary the benefits they confer on all married cou-
ples, they have throughout our history made marriage the
Cite as: 576 U. S. ____ (2015) 17
Opinion of the Court
basis for an expanding list of governmental rights, bene-
fits, and responsibilities. These aspects of marital status
include: taxation; inheritance and property rights; rules of
intestate succession; spousal privilege in the law of evi-
dence; hospital access; medical decisionmaking authority;
adoption rights; the rights and benefits of survivors; birth
and death certificates; professional ethics rules; campaign
finance restrictions; workers’ compensation benefits;
health insurance; and child custody, support, and visita-
tion rules. See Brief for United States as Amicus Curiae
6–9; Brief for American Bar Association as Amicus Curiae
8–29. Valid marriage under state law is also a significant
status for over a thousand provisions of federal law. See
Windsor, 570 U. S., at ___ – ___ (slip op., at 15–16). The
States have contributed to the fundamental character of
the marriage right by placing that institution at the center
of so many facets of the legal and social order.
There is no difference between same- and opposite-sex
couples with respect to this principle. Yet by virtue of
their exclusion from that institution, same-sex couples are
denied the constellation of benefits that the States have
linked to marriage. This harm results in more than just
material burdens. Same-sex couples are consigned to an
instability many opposite-sex couples would deem intoler-
able in their own lives. As the State itself makes marriage
all the more precious by the significance it attaches to it,
exclusion from that status has the effect of teaching that
gays and lesbians are unequal in important respects. It
demeans gays and lesbians for the State to lock them out
of a central institution of the Nation’s society. Same-sex
couples, too, may aspire to the transcendent purposes of
marriage and seek fulfillment in its highest meaning.
The limitation of marriage to opposite-sex couples may
long have seemed natural and just, but its inconsistency
with the central meaning of the fundamental right to
marry is now manifest. With that knowledge must come
18 OBERGEFELL v. HODGES
Opinion of the Court
the recognition that laws excluding same-sex couples from
the marriage right impose stigma and injury of the kind
prohibited by our basic charter.
Objecting that this does not reflect an appropriate fram-
ing of the issue, the respondents refer to Washington v.
Glucksberg, 521 U.S. 702, 721 (1997), which called for a
“ ‘careful description’ ” of fundamental rights. They assert
the petitioners do not seek to exercise the right to marry
but rather a new and nonexistent “right to same-sex mar-
riage.” Brief for Respondent in No. 14–556, p. 8. Glucks-
berg did insist that liberty under the Due Process Clause
must be defined in a most circumscribed manner, with
central reference to specific historical practices. Yet while
that approach may have been appropriate for the asserted
right there involved (physician-assisted suicide), it is
inconsistent with the approach this Court has used in
discussing other fundamental rights, including marriage
and intimacy. Loving did not ask about a “right to inter-
racial marriage”; Turner did not ask about a “right of
inmates to marry”; and Zablocki did not ask about a “right
of fathers with unpaid child support duties to marry.”
Rather, each case inquired about the right to marry in its
comprehensive sense, asking if there was a sufficient
justification for excluding the relevant class from the
right. See also Glucksberg, 521 U.S., at 752–773 (Souter,
J., concurring in judgment); id., at 789–792 (BREYER, J.,
concurring in judgments).
That principle applies here. If rights were defined by
who exercised them in the past, then received practices
could serve as their own continued justification and new
groups could not invoke rights once denied. This Court
has rejected that approach, both with respect to the right
to marry and the rights of gays and lesbians. See Loving
388 U.S., at 12; Lawrence, 539 U.S., at 566–567.
The right to marry is fundamental as a matter of history
and tradition, but rights come not from ancient sources
Cite as: 576 U. S. ____ (2015) 19
Opinion of the Court
alone. They rise, too, from a better informed understand-
ing of how constitutional imperatives define a liberty that
remains urgent in our own era. Many who deem same-sex
marriage to be wrong reach that conclusion based on
decent and honorable religious or philosophical premises,
and neither they nor their beliefs are disparaged here.
But when that sincere, personal opposition becomes en-
acted law and public policy, the necessary consequence is to
put the imprimatur of the State itself on an exclusion that
soon demeans or stigmatizes those whose own liberty is
then denied. Under the Constitution, same-sex couples
seek in marriage the same legal treatment as opposite-sex
couples, and it would disparage their choices and diminish
their personhood to deny them this right.
The right of same-sex couples to marry that is part of
the liberty promised by the Fourteenth Amendment is
derived, too, from that Amendment’s guarantee of the
equal protection of the laws. The Due Process Clause and
the Equal Protection Clause are connected in a profound
way, though they set forth independent principles. Rights
implicit in liberty and rights secured by equal protection
may rest on different precepts and are not always co-
extensive, yet in some instances each may be instructive
as to the meaning and reach of the other. In any particu-
lar case one Clause may be thought to capture the essence
of the right in a more accurate and comprehensive way,
even as the two Clauses may converge in the identification
and definition of the right. See M. L. B., 519 U.S., at 120–
121; id., at 128–129 (KENNEDY, J., concurring in judg-
ment); Bearden v. Georgia, 461 U.S. 660, 665 (1983). This
interrelation of the two principles furthers our under-
standing of what freedom is and must become.
The Court’s cases touching upon the right to marry
reflect this dynamic. In Loving the Court invalidated a
prohibition on interracial marriage under both the Equal
Protection Clause and the Due Process Clause. The Court
20 OBERGEFELL v. HODGES
Opinion of the Court
first declared the prohibition invalid because of its un-
equal treatment of interracial couples. It stated: “There
can be no doubt that restricting the freedom to marry
solely because of racial classifications violates the central
meaning of the Equal Protection Clause.” 388 U.S., at 12.
With this link to equal protection the Court proceeded to
hold the prohibition offended central precepts of liberty:
“To deny this fundamental freedom on so unsupportable a
basis as the racial classifications embodied in these stat-
utes, classifications so directly subversive of the principle
of equality at the heart of the Fourteenth Amendment, is
surely to deprive all the State’s citizens of liberty without
due process of law.” Ibid. The reasons why marriage is a
fundamental right became more clear and compelling from
a full awareness and understanding of the hurt that re-
sulted from laws barring interracial unions.
The synergy between the two protections is illustrated
further in Zablocki. There the Court invoked the Equal
Protection Clause as its basis for invalidating the chal-
lenged law, which, as already noted, barred fathers who
were behind on child-support payments from marrying
without judicial approval. The equal protection analysis
depended in central part on the Court’s holding that the
law burdened a right “of fundamental importance.” 434
U.S., at 383. It was the essential nature of the marriage
right, discussed at length in Zablocki, see id., at 383–387,
that made apparent the law’s incompatibility with re-
quirements of equality. Each concept—liberty and equal
protection—leads to a stronger understanding of the other.
Indeed, in interpreting the Equal Protection Clause, the
Court has recognized that new insights and societal un-
derstandings can reveal unjustified inequality within our
most fundamental institutions that once passed unnoticed
and unchallenged. To take but one period, this occurred
with respect to marriage in the 1970’s and 1980’s. Not-
withstanding the gradual erosion of the doctrine of cover-
Cite as: 576 U. S. ____ (2015) 21
Opinion of the Court
ture, see supra, at 6, invidious sex-based classifications in
marriage remained common through the mid-20th cen-
tury. See App. to Brief for Appellant in Reed v. Reed, O. T.
1971, No. 70–4, pp. 69–88 (an extensive reference to laws
extant as of 1971 treating women as unequal to men in
marriage). These classifications denied the equal dignity
of men and women. One State’s law, for example, pro-
vided in 1971 that “the husband is the head of the family
and the wife is subject to him; her legal civil existence is
merged in the husband, except so far as the law recognizes
her separately, either for her own protection, or for her
benefit.” Ga. Code Ann. §53–501 (1935). Responding to a
new awareness, the Court invoked equal protection prin-
ciples to invalidate laws imposing sex-based inequality on
marriage. See, e.g., Kirchberg v. Feenstra, 450 U.S. 455
(1981); Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142
(1980); Califano v. Westcott, 443 U.S. 76 (1979); Orr v.
Orr, 440 U.S. 268 (1979); Califano v. Goldfarb, 430 U.S.
199 (1977) (plurality opinion); Weinberger v. Wiesenfeld,
420 U.S. 636 (1975); Frontiero v. Richardson, 411 U.S.
677 (1973). Like Loving and Zablocki, these precedents
show the Equal Protection Clause can help to identify
and correct inequalities in the institution of marriage,
vindicating precepts of liberty and equality under the
Constitution.
Other cases confirm this relation between liberty and
equality. In M. L. B. v. S. L. J., the Court invalidated
under due process and equal protection principles a stat-
ute requiring indigent mothers to pay a fee in order to
appeal the termination of their parental rights. See 519
U.S., at 119–124. In Eisenstadt v. Baird, the Court in-
voked both principles to invalidate a prohibition on the
distribution of contraceptives to unmarried persons but
not married persons. See 405 U.S., at 446–454. And in
Skinner v. Oklahoma ex rel. Williamson, the Court invali-
dated under both principles a law that allowed steriliza-
22 OBERGEFELL v. HODGES
Opinion of the Court
tion of habitual criminals. See 316 U.S., at 538–543.
In Lawrence the Court acknowledged the interlocking
nature of these constitutional safeguards in the context of
the legal treatment of gays and lesbians. See 539 U.S., at
575. Although Lawrence elaborated its holding under the
Due Process Clause, it acknowledged, and sought to rem-
edy, the continuing inequality that resulted from laws
making intimacy in the lives of gays and lesbians a crime
against the State. See ibid. Lawrence therefore drew
upon principles of liberty and equality to define and pro-
tect the rights of gays and lesbians, holding the State
“cannot demean their existence or control their destiny by
making their private sexual conduct a crime.” Id., at 578.
This dynamic also applies to same-sex marriage. It is
now clear that the challenged laws burden the liberty of
same-sex couples, and it must be further acknowledged
that they abridge central precepts of equality. Here the
marriage laws enforced by the respondents are in essence
unequal: same-sex couples are denied all the benefits
afforded to opposite-sex couples and are barred from exer-
cising a fundamental right. Especially against a long
history of disapproval of their relationships, this denial to
same-sex couples of the right to marry works a grave and
continuing harm. The imposition of this disability on gays
and lesbians serves to disrespect and subordinate them.
And the Equal Protection Clause, like the Due Process
Clause, prohibits this unjustified infringement of the
fundamental right to marry. See, e.g., Zablocki, supra, at
383–388; Skinner, 316 U.S., at 541.
These considerations lead to the conclusion that the
right to marry is a fundamental right inherent in the
liberty of the person, and under the Due Process and
Equal Protection Clauses of the Fourteenth Amendment
couples of the same-sex may not be deprived of that right
and that liberty. The Court now holds that same-sex
couples may exercise the fundamental right to marry. No
Cite as: 576 U. S. ____ (2015) 23
Opinion of the Court
longer may this liberty be denied to them. Baker v. Nelson
must be and now is overruled, and the State laws chal-
lenged by Petitioners in these cases are now held invalid
to the extent they exclude same-sex couples from civil
marriage on the same terms and conditions as opposite-
sex couples.
IV
There may be an initial inclination in these cases to
proceed with caution—to await further legislation, litiga-
tion, and debate. The respondents warn there has been
insufficient democratic discourse before deciding an issue
so basic as the definition of marriage. In its ruling on the
cases now before this Court, the majority opinion for the
Court of Appeals made a cogent argument that it would be
appropriate for the respondents’ States to await further
public discussion and political measures before licensing
same-sex marriages. See DeBoer, 772 F.3d, at 409.
Yet there has been far more deliberation than this
argument acknowledges. There have been referenda,
legislative debates, and grassroots campaigns, as well as
countless studies, papers, books, and other popular and
scholarly writings. There has been extensive litigation in
state and federal courts. See Appendix A, infra. Judicial
opinions addressing the issue have been informed by the
contentions of parties and counsel, which, in turn, reflect
the more general, societal discussion of same-sex marriage
and its meaning that has occurred over the past decades.
As more than 100 amici make clear in their filings, many
of the central institutions in American life—state and local
governments, the military, large and small businesses,
labor unions, religious organizations, law enforcement,
civic groups, professional organizations, and universities—
have devoted substantial attention to the question. This
has led to an enhanced understanding of the issue—an
understanding reflected in the arguments now presented
24 OBERGEFELL v. HODGES
Opinion of the Court
for resolution as a matter of constitutional law.
Of course, the Constitution contemplates that democ-
racy is the appropriate process for change, so long as that
process does not abridge fundamental rights. Last Term,
a plurality of this Court reaffirmed the importance of the
democratic principle in Schuette v. BAMN, 572 U. S. ___
(2014), noting the “right of citizens to debate so they can
learn and decide and then, through the political process,
act in concert to try to shape the course of their own
times.” Id., at ___ – ___ (slip op., at 15–16). Indeed, it is
most often through democracy that liberty is preserved
and protected in our lives. But as Schuette also said,
“[t]he freedom secured by the Constitution consists, in one
of its essential dimensions, of the right of the individual
not to be injured by the unlawful exercise of governmental
power.” Id., at ___ (slip op., at 15). Thus, when the rights
of persons are violated, “the Constitution requires redress
by the courts,” notwithstanding the more general value of
democratic decisionmaking. Id., at ___ (slip op., at 17).
This holds true even when protecting individual rights
affects issues of the utmost importance and sensitivity.
The dynamic of our constitutional system is that indi-
viduals need not await legislative action before asserting a
fundamental right. The Nation’s courts are open to in-
jured individuals who come to them to vindicate their own
direct, personal stake in our basic charter. An individual
can invoke a right to constitutional protection when he or
she is harmed, even if the broader public disagrees and
even if the legislature refuses to act. The idea of the
Constitution “was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond
the reach of majorities and officials and to establish them
as legal principles to be applied by the courts.” West Vir-
ginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943).
This is why “fundamental rights may not be submitted to
a vote; they depend on the outcome of no elections.” Ibid.
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Opinion of the Court
It is of no moment whether advocates of same-sex mar-
riage now enjoy or lack momentum in the democratic
process. The issue before the Court here is the legal ques-
tion whether the Constitution protects the right of same-
sex couples to marry.
This is not the first time the Court has been asked to
adopt a cautious approach to recognizing and protecting
fundamental rights. In Bowers, a bare majority upheld a
law criminalizing same-sex intimacy. See 478 U.S., at
186, 190–195. That approach might have been viewed as
a cautious endorsement of the democratic process, which
had only just begun to consider the rights of gays and
lesbians. Yet, in effect, Bowers upheld state action that
denied gays and lesbians a fundamental right and caused
them pain and humiliation. As evidenced by the dissents
in that case, the facts and principles necessary to a correct
holding were known to the Bowers Court. See id., at 199
(Blackmun, J., joined by Brennan, Marshall, and Stevens,
JJ., dissenting); id., at 214 (Stevens, J., joined by Brennan
and Marshall, JJ., dissenting). That is why Lawrence held
Bowers was “not correct when it was decided.” 539 U.S.,
at 578. Although Bowers was eventually repudiated in
Lawrence, men and women were harmed in the interim,
and the substantial effects of these injuries no doubt
lingered long after Bowers was overruled. Dignitary
wounds cannot always be healed with the stroke of a pen.
A ruling against same-sex couples would have the same
effect—and, like Bowers, would be unjustified under the
Fourteenth Amendment. The petitioners’ stories make
clear the urgency of the issue they present to the Court.
James Obergefell now asks whether Ohio can erase his
marriage to John Arthur for all time. April DeBoer and
Jayne Rowse now ask whether Michigan may continue to
deny them the certainty and stability all mothers desire to
protect their children, and for them and their children the
childhood years will pass all too soon. Ijpe DeKoe and
26 OBERGEFELL v. HODGES
Opinion of the Court
Thomas Kostura now ask whether Tennessee can deny to
one who has served this Nation the basic dignity of recog-
nizing his New York marriage. Properly presented with
the petitioners’ cases, the Court has a duty to address
these claims and answer these questions.
Indeed, faced with a disagreement among the Courts of
Appeals—a disagreement that caused impermissible
geographic variation in the meaning of federal law—the
Court granted review to determine whether same-sex
couples may exercise the right to marry. Were the Court
to uphold the challenged laws as constitutional, it would
teach the Nation that these laws are in accord with our
society’s most basic compact. Were the Court to stay its
hand to allow slower, case-by-case determination of the
required availability of specific public benefits to same-sex
couples, it still would deny gays and lesbians many rights
and responsibilities intertwined with marriage.
The respondents also argue allowing same-sex couples
to wed will harm marriage as an institution by leading to
fewer opposite-sex marriages. This may occur, the re-
spondents contend, because licensing same-sex marriage
severs the connection between natural procreation and
marriage. That argument, however, rests on a counterin-
tuitive view of opposite-sex couple’s decisionmaking pro-
cesses regarding marriage and parenthood. Decisions
about whether to marry and raise children are based on
many personal, romantic, and practical considerations;
and it is unrealistic to conclude that an opposite-sex cou-
ple would choose not to marry simply because same-sex
couples may do so. See Kitchen v. Herbert, 755 F.3d 1193,
1223 (CA10 2014) (“[I]t is wholly illogical to believe that
state recognition of the love and commitment between
same-sex couples will alter the most intimate and personal
decisions of opposite-sex couples”). The respondents have
not shown a foundation for the conclusion that allowing
same-sex marriage will cause the harmful outcomes they
Cite as: 576 U. S. ____ (2015) 27
Opinion of the Court
describe. Indeed, with respect to this asserted basis for
excluding same-sex couples from the right to marry, it is
appropriate to observe these cases involve only the rights
of two consenting adults whose marriages would pose no
risk of harm to themselves or third parties.
Finally, it must be emphasized that religions, and those
who adhere to religious doctrines, may continue to advo-
cate with utmost, sincere conviction that, by divine pre-
cepts, same-sex marriage should not be condoned. The
First Amendment ensures that religious organizations and
persons are given proper protection as they seek to teach
the principles that are so fulfilling and so central to their
lives and faiths, and to their own deep aspirations to
continue the family structure they have long revered. The
same is true of those who oppose same-sex marriage for
other reasons. In turn, those who believe allowing same-
sex marriage is proper or indeed essential, whether as a
matter of religious conviction or secular belief, may engage
those who disagree with their view in an open and search-
ing debate. The Constitution, however, does not permit
the State to bar same-sex couples from marriage on the
same terms as accorded to couples of the opposite sex.
V
These cases also present the question whether the Con-
stitution requires States to recognize same-sex marriages
validly performed out of State. As made clear by the case
of Obergefell and Arthur, and by that of DeKoe and Kos-
tura, the recognition bans inflict substantial and continuing
harm on same-sex couples.
Being married in one State but having that valid mar-
riage denied in another is one of “the most perplexing and
distressing complication[s]” in the law of domestic rela-
tions. Williams v. North Carolina, 317 U.S. 287, 299
(1942) (internal quotation marks omitted). Leaving the
current state of affairs in place would maintain and pro-
28 OBERGEFELL v. HODGES
Opinion of the Court
mote instability and uncertainty. For some couples, even
an ordinary drive into a neighboring State to visit family
or friends risks causing severe hardship in the event of a
spouse’s hospitalization while across state lines. In light
of the fact that many States already allow same-sex mar-
riage—and hundreds of thousands of these marriages
already have occurred—the disruption caused by the
recognition bans is significant and ever-growing.
As counsel for the respondents acknowledged at argu-
ment, if States are required by the Constitution to issue
marriage licenses to same-sex couples, the justifications
for refusing to recognize those marriages performed else-
where are undermined. See Tr. of Oral Arg. on Question
2, p. 44. The Court, in this decision, holds same-sex cou-
ples may exercise the fundamental right to marry in all
States. It follows that the Court also must hold—and it
now does hold—that there is no lawful basis for a State to
refuse to recognize a lawful same-sex marriage performed
in another State on the ground of its same-sex character.
* * *
No union is more profound than marriage, for it embod-
ies the highest ideals of love, fidelity, devotion, sacrifice,
and family. In forming a marital union, two people be-
come something greater than once they were. As some of
the petitioners in these cases demonstrate, marriage
embodies a love that may endure even past death. It
would misunderstand these men and women to say they
disrespect the idea of marriage. Their plea is that they do
respect it, respect it so deeply that they seek to find its
fulfillment for themselves. Their hope is not to be con-
demned to live in loneliness, excluded from one of civiliza-
tion’s oldest institutions. They ask for equal dignity in the
eyes of the law. The Constitution grants them that right.
The judgment of the Court of Appeals for the Sixth
Circuit is reversed.
It is so ordered.
Cite as: 576 U. S. ____ (2015) 29
Opinion
Appendix of the Court
A to opinion of the Court
APPENDICES
A
State and Federal Judicial Decisions
Addressing Same-Sex Marriage
United States Courts of Appeals Decisions
Adams v. Howerton, 673 F.2d 1036 (CA9 1982)
Smelt v. County of Orange, 447 F.3d 673 (CA9 2006)
Citizens for Equal Protection v. Bruning, 455 F.3d 859
(CA8 2006)
Windsor v. United States, 699 F.3d 169 (CA2 2012)
Massachusetts v. Department of Health and Human
Services, 682 F.3d 1 (CA1 2012)
Perry v. Brown, 671 F.3d 1052 (CA9 2012)
Latta v. Otter, 771 F.3d 456 (CA9 2014)
Baskin v. Bogan, 766 F.3d 648 (CA7 2014)
Bishop v. Smith, 760 F.3d 1070 (CA10 2014)
Bostic v. Schaefer, 760 F.3d 352 (CA4 2014)
Kitchen v. Herbert, 755 F.3d 1193 (CA10 2014)
DeBoer v. Snyder, 772 F.3d 388 (CA6 2014)
Latta v. Otter, 779 F.3d 902 (CA9 2015) (O’Scannlain,
J., dissenting from the denial of rehearing en banc)
United States District Court Decisions
Adams v. Howerton, 486 F. Supp. 1119 (CD Cal. 1980)
Citizens for Equal Protection, Inc. v. Bruning, 290
F. Supp. 2d 1004 (Neb. 2003)
Citizens for Equal Protection v. Bruning, 368 F. Supp.
2d 980 (Neb. 2005)
Wilson v. Ake, 354 F. Supp. 2d 1298 (MD Fla. 2005)
Smelt v. County of Orange, 374 F. Supp. 2d 861 (CD Cal.
2005)
Bishop v. Oklahoma ex rel. Edmondson, 447 F. Supp. 2d
1239 (ND Okla. 2006)
30 OBERGEFELL v. HODGES
Opinion
Appendix of the Court
A to opinion of the Court
Massachusetts v. Department of Health and Human
Services, 698 F. Supp. 2d 234 (Mass. 2010)
Gill v. Office of Personnel Management, 699 F. Supp. 2d
374 (Mass. 2010)
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (ND Cal.
2010)
Dragovich v. Department of Treasury, 764 F. Supp. 2d
1178 (ND Cal. 2011)
Golinski v. Office of Personnel Management, 824
F. Supp. 2d 968 (ND Cal. 2012)
Dragovich v. Department of Treasury, 872 F. Supp. 2d
944 (ND Cal. 2012)
Windsor v. United States, 833 F. Supp. 2d 394 (SDNY
2012)
Pedersen v. Office of Personnel Management, 881
F. Supp. 2d 294 (Conn. 2012)
Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (Haw.
2012)
Sevcik v. Sandoval, 911 F. Supp. 2d 996 (Nev. 2012)
Merritt v. Attorney General, 2013 WL 6044329 (MD La.,
Nov. 14, 2013)
Gray v. Orr, 4 F. Supp. 3d 984 (ND Ill. 2013)
Lee v. Orr, 2013 WL 6490577 (ND Ill., Dec. 10, 2013)
Kitchen v. Herbert, 961 F. Supp. 2d 1181 (Utah 2013)
Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (SD Ohio
2013)
Bishop v. United States ex rel. Holder, 962 F. Supp. 2d
1252 (ND Okla. 2014)
Bourke v. Beshear, 996 F. Supp. 2d 542 (WD Ky. 2014)
Lee v. Orr, 2014 WL 683680 (ND Ill., Feb. 21, 2014)
Bostic v. Rainey, 970 F. Supp. 2d 456 (ED Va. 2014)
De Leon v. Perry, 975 F. Supp. 2d 632 (WD Tex. 2014)
Tanco v. Haslam, 7 F. Supp. 3d 759 (MD Tenn. 2014)
DeBoer v. Snyder, 973 F. Supp. 2d 757 (ED Mich. 2014)
Henry v. Himes, 14 F. Supp. 3d 1036 (SD Ohio 2014)
Latta v. Otter, 19 F. Supp. 3d 1054 (Idaho 2014)
Cite as: 576 U. S. ____ (2015) 31
Opinion
Appendix of the Court
A to opinion of the Court
Geiger v. Kitzhaber, 994 F. Supp. 2d 1128 (Ore. 2014)
Evans v. Utah, 21 F. Supp. 3d 1192 (Utah 2014)
Whitewood v. Wolf, 992 F. Supp. 2d 410 (MD Pa. 2014)
Wolf v. Walker, 986 F. Supp. 2d 982 (WD Wis. 2014)
Baskin v. Bogan, 12 F. Supp. 3d 1144 (SD Ind. 2014)
Love v. Beshear, 989 F. Supp. 2d 536 (WD Ky. 2014)
Burns v. Hickenlooper, 2014 WL 3634834 (Colo., July
23, 2014)
Bowling v. Pence, 39 F. Supp. 3d 1025 (SD Ind. 2014)
Brenner v. Scott, 999 F. Supp. 2d 1278 (ND Fla. 2014)
Robicheaux v. Caldwell, 2 F. Supp. 3d 910 (ED La. 2014)
General Synod of the United Church of Christ v. Resing-
er, 12 F. Supp. 3d 790 (WDNC 2014)
Hamby v. Parnell, 56 F. Supp. 3d 1056 (Alaska 2014)
Fisher-Borne v. Smith, 14 F. Supp. 3d 695 (MDNC 2014)
Majors v. Horne, 14 F. Supp. 3d 1313 (Ariz. 2014)
Connolly v. Jeanes, ___ F. Supp. 3d ___, 2014 WL
5320642 (Ariz., Oct. 17, 2014)
Guzzo v. Mead, 2014 WL 5317797 (Wyo., Oct. 17, 2014)
Conde-Vidal v. Garcia-Padilla, 54 F. Supp. 3d 157 (PR
2014)
Marie v. Moser, ___ F. Supp. 3d ___, 2014 WL 5598128
(Kan., Nov. 4, 2014)
Lawson v. Kelly, 58 F. Supp. 3d 923 (WD Mo. 2014)
McGee v. Cole, ___ F. Supp. 3d ___, 2014 WL 5802665
(SD W. Va., Nov. 7, 2014)
Condon v. Haley, 21 F. Supp. 3d 572 (S. C. 2014)
Bradacs v. Haley, 58 F. Supp. 3d 514 (S. C. 2014)
Rolando v. Fox, 23 F. Supp. 3d 1227 (Mont. 2014)
Jernigan v. Crane, ___ F. Supp. 3d ___, 2014 WL
6685391 (ED Ark., Nov. 25, 2014)
Campaign for Southern Equality v. Bryant, ___ F. Supp.
3d ___, 2014 WL 6680570 (SD Miss., Nov. 25, 2014)
Inniss v. Aderhold, ___ F. Supp. 3d ___, 2015 WL 300593
(ND Ga., Jan. 8, 2015)
32 OBERGEFELL v. HODGES
Opinion
Appendix of the Court
A to opinion of the Court
Rosenbrahn v. Daugaard, 61 F. Supp. 3d 862 (S. D.,
2015)
Caspar v. Snyder, ___ F. Supp. 3d ___, 2015 WL 224741
(ED Mich., Jan. 15, 2015)
Searcey v. Strange, 2015 U. S. Dist. LEXIS 7776 (SD
Ala., Jan. 23, 2015)
Strawser v. Strange, 44 F. Supp. 3d 1206 (SD Ala. 2015)
Waters v. Ricketts, 48 F. Supp. 3d 1271 (Neb. 2015)
State Highest Court Decisions
Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971)
Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973)
Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993)
Dean v. District of Columbia, 653 A.2d 307 (D. C. 1995)
Baker v. State, 170 Vt. 194, 744 A.2d 864 (1999)
Brause v. State, 21 P.3d 357 (Alaska 2001) (ripeness)
Goodridge v. Department of Public Health, 440 Mass.
309, 798 N.E.2d 941 (2003)
In re Opinions of the Justices to the Senate, 440 Mass.
1201, 802 N.E.2d 565 (2004)
Li v. State, 338 Or. 376, 110 P.3d 91 (2005)
Cote-Whitacre v. Department of Public Health,446 Mass.
350, 844 N.E.2d 623 (2006)
Lewis v. Harris, 188 N. J. 415, 908 A.2d 196 (2006)
Andersen v. King County, 158 Wash. 2d 1, 138 P.3d 963
(2006)
Hernandez v. Robles, 7 N.Y. 3d 338, 855 N.E.2d 1
(2006)
Conaway v. Deane, 401 Md. 219, 932 A.2d 571 (2007)
In re Marriage Cases, 43 Cal. 4th 757, 183 P.3d 384
(2008)
Kerrigan v. Commissioner of Public Health, 289 Conn.
135, 957 A.2d 407 (2008)
Strauss v. Horton, 46 Cal. 4th 364, 207 P.3d 48 (2009)
Cite as: 576 U. S. ____ (2015) 33
Opinion
Appendix of the Court
A to opinion of the Court
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009)
Griego v. Oliver, 2014–NMSC–003, ___ N. M. ___, 316
P.3d 865 (2013)
Garden State Equality v. Dow, 216 N. J. 314, 79 A.3d
1036 (2013)
Ex parte State ex rel. Alabama Policy Institute, ___ So.
3d ___, 2015 WL 892752 (Ala., Mar. 3, 2015)
34 OBERGEFELL v. HODGES
Opinion
Appendix of the Court
B to opinion of the Court
B
State Legislation and Judicial Decisions
Legalizing Same-Sex Marriage
Legislation
Del. Code Ann., Tit. 13, §129 (Cum. Supp. 2014)
D. C. Act No. 18–248, 57 Dall. C. Reg. 27 (2010)
Haw. Rev. Stat. §572 –1 (2006) and 2013 Cum. Supp.)
Ill. Pub. Act No. 98–597
Me. Rev. Stat. Ann., Tit. 19, §650–A (Cum. Supp. 2014)
2012 Md. Laws p. 9
2013 Minn Laws p. 404
2009 N. H. Laws p. 60
2011 N. Y Laws p. 749
2013 Rawle I. Laws p. 7
2009 Vt. Acts & Resolves p. 33
2012 Wash. Sess. Laws p. 199
Judicial Decisions
Goodridge v. Department of Public Health, 440 Mass.
309, 798 N.E.2d 941 (2003)
Kerrigan v. Commissioner of Public Health, 289 Conn.
135, 957 A.2d 407 (2008)
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009)
Griego v. Oliver, 2014–NMSC–003, ___ N. M. ___, 316
P.3d 865 (2013)
Garden State Equality v. Dow, 216 N. J. 314, 79 A.3d
1036 (2013)
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) (capitaliza-
tion altered).
Although the policy arguments for extending marriage
to same-sex couples may be compelling, the legal argu-
ments for requiring such an extension are not. The fun-
damental 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 ap-
proach 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 mar-
riage, 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 judg-
ment. The right it announces has no basis in the Consti-
tution 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 invali-
dates 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 Carthagin-
ians and the Aztecs. Just who do we think we are?
It can be tempting for judges to confuse our own prefer-
ences with the requirements of the law. But as this Court
has been reminded throughout our history, the Constitu-
tion “is made for people of fundamentally differing views.”
Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J.,
dissenting). Accordingly, “courts are not concerned with
the wisdom or policy of legislation.” Id., at 69 (Harlan, J.,
dissenting). The majority today neglects that restrained
conception of the judicial role. It seizes for itself a ques-
tion the Constitution leaves to the people, at a time when
the people are engaged in a vibrant debate on that ques-
tion. And it answers that question based not on neutral
principles of constitutional law, but on its own “under-
standing of what freedom is and must become.” Ante, at
19. I have no choice but to dissent.
Understand well what this dissent is about: It is not
about whether, in my judgment, the institution of mar-
riage 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.
4 OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
I
Petitioners and their amici base their arguments on the
“right to marry” and the imperative of “marriage equality.”
There is no serious dispute that, under our precedents, the
Constitution protects a right to marry and requires States
to apply their marriage laws equally. The real question in
these cases is what constitutes “marriage,” or—more
precisely—who decides what constitutes “marriage”?
The majority largely ignores these questions, relegating
ages of human experience with marriage to a paragraph or
two. Even if history and precedent are not “the end” of
these cases, ante, at 4, I would not “sweep away what has
so long been settled” without showing greater respect for
all that preceded us. Town of Greece v. Galloway, 572
U. S. ___, ___ (2014) (slip op., at 8).
A
As the majority acknowledges, marriage “has existed for
millennia and across civilizations.” Ante, at 3. For all
those millennia, across all those civilizations, “marriage”
referred to only one relationship: the union of a man and a
woman. See ante, at 4; Tr. of Oral Arg. on Question 1,
p. 12 (petitioners conceding that they are not aware of any
society that permitted same-sex marriage before 2001). As
the Court explained two Terms ago, “until recent years,
. . . marriage between a man and a woman no doubt had
been thought of by most people as essential to the very
definition of that term and to its role and function
throughout the history of civilization.” United States v.
Windsor, 570 U. S. ___, ___ (2013) (slip op., at 13).
This universal definition of marriage as the union of a
man and a woman is no historical coincidence. Marriage
did not come about as a result of a political movement,
discovery, disease, war, religious doctrine, or any other
moving force of world history—and certainly not as a
result of a prehistoric decision to exclude gays and lesbi-
Cite as: 576 U. S. ____ (2015) 5
ROBERTS, C. J., dissenting
ans. It arose in the nature of things to meet a vital need:
ensuring that children are conceived by a mother and
father committed to raising them in the stable conditions
of a lifelong relationship. See G. Quale, A History of
Marriage Systems 2 (1988); cf. M. Cicero, De Officiis 57
(W. Miller transl. 1913) (“For since the reproductive in-
stinct is by nature’s gift the common possession of all
living creatures, the first bond of union is that between
husband and wife; the next, that between parents and
children; then we find one home, with everything in
common.”).
The premises supporting this concept of marriage are so
fundamental that they rarely require articulation. The
human race must procreate to survive. Procreation occurs
through sexual relations between a man and a woman.
When sexual relations result in the conception of a child,
that child’s prospects are generally better if the mother
and father stay together rather than going their separate
ways. Therefore, for the good of children and society,
sexual relations that can lead to procreation should occur
only between a man and a woman committed to a lasting
bond.
Society has recognized that bond as marriage. And by
bestowing a respected status and material benefits on
married couples, society encourages men and women to
conduct sexual relations within marriage rather than
without. As one prominent scholar put it, “Marriage is a
socially arranged solution for the problem of getting people
to stay together and care for children that the mere desire
for children, and the sex that makes children possible,
does not solve.” J. Q. Wilson, The Marriage Problem 41
(2002).
This singular understanding of marriage has prevailed
in the United States throughout our history. The majority
accepts that at “the time of the Nation’s founding [mar-
riage] was understood to be a voluntary contract between
6 OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
a man and a woman.” Ante, at 6. Early Americans drew
heavily on legal scholars like William Blackstone, who
regarded marriage between “husband and wife” as one of
the “great relations in private life,” and philosophers like
John Locke, who described marriage as “a voluntary com-
pact between man and woman” centered on “its chief end,
procreation” and the “nourishment and support” of chil-
dren. 1 W. Blackstone, Commentaries *410; J. Locke,
Second Treatise of Civil Government §§78–79, p. 39 (J.
Gough ed. 1947). To those who drafted and ratified the
Constitution, this conception of marriage and family “was
a given: its structure, its stability, roles, and values ac-
cepted by all.” Forte, The Framers’ Idea of Marriage and
Family, in The Meaning of Marriage 100, 102 (R. George
& J. Elshtain eds. 2006).
The Constitution itself says nothing about marriage,
and the Framers thereby entrusted the States with “[t]he
whole subject of the domestic relations of husband and
wife.” Windsor, 570 U. S., at ___ (slip op., at 17) (quoting
In re Burrus, 136 U.S. 586, 593–594 (1890)). There is no
dispute that every State at the founding—and every State
throughout our history until a dozen years ago—defined
marriage in the traditional, biologically rooted way. The
four States in these cases are typical. Their laws, before
and after statehood, have treated marriage as the union of
a man and a woman. See DeBoer v. Snyder, 772 F.3d 388,
396–399 (CA6 2014). Even when state laws did not spec-
ify this definition expressly, no one doubted what they
meant. See Jones v. Hallahan, 501 S.W.2d 588, 589 (Ky.
App. 1973). The meaning of “marriage” went without
saying.
Of course, many did say it. In his first American dic-
tionary, Noah Webster defined marriage as “the legal
union of a man and woman for life,” which served the
purposes of “preventing the promiscuous intercourse of the
sexes, . . . promoting domestic felicity, and . . . securing the
Cite as: 576 U. S. ____ (2015) 7
ROBERTS, C. J., dissenting
maintenance and education of children.” 1 An American
Dictionary of the English Language (1828). An influential
19th-century treatise defined marriage as “a civil status,
existing in one man and one woman legally united for life
for those civil and social purposes which are based in the
distinction of sex.” J. Bishop, Commentaries on the Law of
Marriage and Divorce 25 (1852). The first edition of
Black’s Law Dictionary defined marriage as “the civil
status of one man and one woman united in law for life.”
Black’s Law Dictionary 756 (1891) (emphasis deleted).
The dictionary maintained essentially that same definition
for the next century.
This Court’s precedents have repeatedly described
marriage in ways that are consistent only with its tradi-
tional meaning. Early cases on the subject referred to
marriage as “the union for life of one man and one wom-
an,” Murphy v. Ramsey, 114 U.S. 15, 45 (1885), which
forms “the foundation of the family and of society, without
which there would be neither civilization nor progress,”
Maynard v. Hill, 125 U.S. 190, 211 (1888). We later
described marriage as “fundamental to our very existence
and survival,” an understanding that necessarily implies a
procreative component. Loving v. Virginia, 388 U.S. 1, 12
(1967); see Skinner v. Oklahoma ex rel. Williamson, 316
U.S. 535, 541 (1942). More recent cases have directly
connected the right to marry with the “right to procreate.”
Zablocki v. Redhail, 434 U.S. 374, 386 (1978).
As the majority notes, some aspects of marriage have
changed over time. Arranged marriages have largely
given way to pairings based on romantic love. States have
replaced coverture, the doctrine by which a married man
and woman became a single legal entity, with laws that
respect each participant’s separate status. Racial re-
strictions on marriage, which “arose as an incident to
slavery” to promote “White Supremacy,” were repealed by
many States and ultimately struck down by this Court.
8 OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
Loving, 388 U.S., at 6–7.
The majority observes that these developments “were
not mere superficial changes” in marriage, but rather
“worked deep transformations in its structure.” Ante, at
6–7. They did not, however, work any transformation in
the core structure of marriage as the union between a man
and a woman. If you had asked a person on the street how
marriage was defined, no one would ever have said, “Mar-
riage is the union of a man and a woman, where the woman
is subject to coverture.” The majority may be right that
the “history of marriage is one of both continuity and
change,” but the core meaning of marriage has endured.
Ante, at 6.
B
Shortly after this Court struck down racial restrictions
on marriage in Loving, a gay couple in Minnesota sought a
marriage license. They argued that the Constitution
required States to allow marriage between people of the
same sex for the same reasons that it requires States to
allow marriage between people of different races. The
Minnesota Supreme Court rejected their analogy to Lov-
ing, and this Court summarily dismissed an appeal.
Baker v. Nelson, 409 U.S. 810 (1972).
In the decades after Baker, greater numbers of gays and
lesbians began living openly, and many expressed a desire
to have their relationships recognized as marriages. Over
time, more people came to see marriage in a way that
could be extended to such couples. Until recently, this
new view of marriage remained a minority position. After
the Massachusetts Supreme Judicial Court in 2003 inter-
preted its State Constitution to require recognition of
same-sex marriage, many States—including the four at
issue here—enacted constitutional amendments formally
adopting the longstanding definition of marriage.
Over the last few years, public opinion on marriage has
Cite as: 576 U. S. ____ (2015) 9
ROBERTS, C. J., dissenting
shifted rapidly. In 2009, the legislatures of Vermont, New
Hampshire, and the District of Columbia became the first
in the Nation to enact laws that revised the definition of
marriage to include same-sex couples, while also providing
accommodations for religious believers. In 2011, the New
York Legislature enacted a similar law. In 2012, voters in
Maine did the same, reversing the result of a referendum
just three years earlier in which they had upheld the
traditional definition of marriage.
In all, voters and legislators in eleven States and the
District of Columbia have changed their definitions of
marriage to include same-sex couples. The highest courts
of five States have decreed that same result under their
own Constitutions. The remainder of the States retain the
traditional definition of marriage.
Petitioners brought lawsuits contending that the Due
Process and Equal Protection Clauses of the Fourteenth
Amendment compel their States to license and recognize
marriages between same-sex couples. In a carefully rea-
soned decision, the Court of Appeals acknowledged the
democratic “momentum” in favor of “expand[ing] the
definition of marriage to include gay couples,” but con-
cluded that petitioners had not made “the case for consti-
tutionalizing the definition of marriage and for removing
the issue from the place it has been since the founding: in
the hands of state voters.” 772 F.3d, at 396, 403. That
decision interpreted the Constitution correctly, and I
would affirm.
II
Petitioners first contend that the marriage laws of their
States violate the Due Process Clause. The Solicitor Gen-
eral of the United States, appearing in support of petition-
ers, expressly disowned that position before this Court.
See Tr. of Oral Arg. on Question 1, at 38–39. The majority
nevertheless resolves these cases for petitioners based
10 OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
almost entirely on the Due Process Clause.
The majority purports to identify four “principles and
traditions” in this Court’s due process precedents that
support a fundamental right for same-sex couples to
marry. Ante, at 12. In reality, however, the majority’s ap-
proach has no basis in principle or tradition, except for the
unprincipled tradition of judicial policymaking that char-
acterized discredited decisions such as Lochner v. New
York, 198 U.S. 45. Stripped of its shiny rhetorical gloss,
the majority’s argument is that the Due Process Clause
gives same-sex couples a fundamental right to marry
because it will be good for them and for society. If I were a
legislator, I would certainly consider that view as a matter
of social policy. But as a judge, I find the majority’s posi-
tion indefensible as a matter of constitutional law.
A
Petitioners’ “fundamental right” claim falls into the
most sensitive category of constitutional adjudication.
Petitioners do not contend that their States’ marriage laws
violate an enumerated constitutional right, such as the
freedom of speech protected by the First Amendment.
There is, after all, no “Companionship and Understand-
ing” or “Nobility and Dignity” Clause in the Constitution.
See ante, at 3, 14. They argue instead that the laws vio-
late a right implied by the Fourteenth Amendment’s
requirement that “liberty” may not be deprived without
“due process of law.”
This Court has interpreted the Due Process Clause to
include a “substantive” component that protects certain
liberty interests against state deprivation “no matter what
process is provided.” Reno v. Flores, 507 U.S. 292, 302
(1993). The theory is that some liberties are “so rooted in
the traditions and conscience of our people as to be ranked
as fundamental,” and therefore cannot be deprived with-
out compelling justification. Snyder v. Massachusetts, 291
Cite as: 576 U. S. ____ (2015) 11
ROBERTS, C. J., dissenting
U. S. 97, 105 (1934).
Allowing unelected federal judges to select which un-
enumerated rights rank as “fundamental”—and to strike
down state laws on the basis of that determination—raises
obvious concerns about the judicial role. Our precedents
have accordingly insisted that judges “exercise the utmost
care” in identifying implied fundamental rights, “lest the
liberty protected by the Due Process Clause be subtly
transformed into the policy preferences of the Members of
this Court.” Washington v. Glucksberg, 521 U.S. 702, 720
(1997) (internal quotation marks omitted); see Kennedy,
Unenumerated Rights and the Dictates of Judicial Re-
straint 13 (1986) (Address at Stanford) (“One can conclude
that certain essential, or fundamental, rights should exist
in any just society. It does not follow that each of those
essential rights is one that we as judges can enforce under
the written Constitution. The Due Process Clause is not a
guarantee of every right that should inhere in an ideal
system.”).
The need for restraint in administering the strong medi-
cine of substantive due process is a lesson this Court has
learned the hard way. The Court first applied substantive
due process to strike down a statute in Dred Scott v. Sand-
ford, 19 How. 393 (1857). There the Court invalidated the
Missouri Compromise on the ground that legislation re-
stricting the institution of slavery violated the implied
rights of slaveholders. The Court relied on its own concep-
tion of liberty and property in doing so. It asserted that
“an act of Congress which deprives a citizen of the United
States of his liberty or property, merely because he came
himself or brought his property into a particular Territory
of the United States . . . could hardly be dignified with the
name of due process of law.” Id., at 450. In a dissent that
has outlasted the majority opinion, Justice Curtis ex-
plained that when the “fixed rules which govern the inter-
pretation of laws [are] abandoned, and the theoretical
12 OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
opinions of individuals are allowed to control” the Consti-
tution’s meaning, “we have no longer a Constitution; we
are under the government of individual men, who for the
time being have power to declare what the Constitution is,
according to their own views of what it ought to mean.”
Id., at 621.
Dred Scott’s holding was overruled on the battlefields of
the Civil War and by constitutional amendment after
Appomattox, but its approach to the Due Process Clause
reappeared. In a series of early 20th-century cases, most
prominently Lochner v. New York, this Court invalidated
state statutes that presented “meddlesome interferences
with the rights of the individual,” and “undue interference
with liberty of person and freedom of contract.” 198 U.S.,
at 60, 61. In Lochner itself, the Court struck down a New
York law setting maximum hours for bakery employees,
because there was “in our judgment, no reasonable foun-
dation for holding this to be necessary or appropriate as a
health law.” Id., at 58.
The dissenting Justices in Lochner explained that the
New York law could be viewed as a reasonable response to
legislative concern about the health of bakery employees,
an issue on which there was at least “room for debate and
for an honest difference of opinion.” Id., at 72 (opinion of
Harlan, J.). The majority’s contrary conclusion required
adopting as constitutional law “an economic theory which
a large part of the country does not entertain.” Id., at 75
(opinion of Holmes, J.). As Justice Holmes memorably put
it, “The Fourteenth Amendment does not enact Mr. Her-
bert Spencer’s Social Statics,” a leading work on the phi-
losophy of Social Darwinism. Ibid. The Constitution “is
not intended to embody a particular economic theory . . . .
It is made for people of fundamentally differing views, and
the accident of our finding certain opinions natural and
familiar or novel and even shocking ought not to conclude
our judgment upon the question whether statutes embody-
Cite as: 576 U. S. ____ (2015) 13
ROBERTS, C. J., dissenting
ing them conflict with the Constitution.” Id., at 75–76.
In the decades after Lochner, the Court struck down
nearly 200 laws as violations of individual liberty, often
over strong dissents contending that “[t]he criterion of
constitutionality is not whether we believe the law to be
for the public good.” Adkins v. Children’s Hospital of
D. C., 261 U.S. 525, 570 (1923) (opinion of Holmes, J.). By
empowering judges to elevate their own policy judgments
to the status of constitutionally protected “liberty,” the
Lochner line of cases left “no alternative to regarding the
court as a . . . legislative chamber.” L. Hand, The Bill of
Rights 42 (1958).
Eventually, the Court recognized its error and vowed
not to repeat it. “The doctrine that . . . due process author-
izes courts to hold laws unconstitutional when they believe
the legislature has acted unwisely,” we later explained,
“has long since been discarded. We have returned to the
original constitutional proposition that courts do not
substitute their social and economic beliefs for the judg-
ment of legislative bodies, who are elected to pass laws.”
Ferguson v. Skrupa, 372 U.S. 726, 730 (1963); see Day-
Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952)
(“we do not sit as a super-legislature to weigh the wisdom
of legislation”). Thus, it has become an accepted rule that
the Court will not hold laws unconstitutional simply be-
cause we find them “unwise, improvident, or out of har-
mony with a particular school of thought.” Williamson v.
Lee Optical of Okla., Inc., 348 U.S. 483, 488 (1955).
Rejecting Lochner does not require disavowing the
doctrine of implied fundamental rights, and this Court has
not done so. But to avoid repeating Lochner’s error of
converting personal preferences into constitutional man-
dates, our modern substantive due process cases have
stressed the need for “judicial self-restraint.” Collins v.
Harker Heights, 503 U.S. 115, 125 (1992). Our precedents
have required that implied fundamental rights be “objec-
14 OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
tively, deeply rooted in this Nation’s history and tradi-
tion,” and “implicit in the concept of ordered liberty, such
that neither liberty nor justice would exist if they were
sacrificed.” Glucksberg, 521 U.S., at 720–721 (internal
quotation marks omitted).
Although the Court articulated the importance of his-
tory and tradition to the fundamental rights inquiry most
precisely in Glucksberg, many other cases both before and
after have adopted the same approach. See, e.g., District
Attorney’s Office for Third Judicial Dist. v. Osborne, 557
U.S. 52, 72 (2009); Flores, 507 U.S., at 303; United States
v. Salerno, 481 U.S. 739, 751 (1987); Moore v. East Cleve-
land, 431 U.S. 494, 503 (1977) (plurality opinion); see also
id., at 544 (White, J., dissenting) (“The Judiciary, includ-
ing this Court, is the most vulnerable and comes nearest
to illegitimacy when it deals with judge-made constitu-
tional law having little or no cognizable roots in the lan-
guage or even the design of the Constitution.”); Troxel v.
Granville, 530 U.S. 57, 96–101 (2000) (KENNEDY, J.,
dissenting) (consulting “ ‘[o]ur Nation’s history, legal tradi-
tions, and practices’ ” and concluding that “[w]e owe it to
the Nation’s domestic relations legal structure . . . to
proceed with caution” (quoting Glucksberg, 521 U.S., at
721)).
Proper reliance on history and tradition of course re-
quires looking beyond the individual law being challenged,
so that every restriction on liberty does not supply its own
constitutional justification. The Court is right about that.
Ante, at 18. But given the few “guideposts for responsible
decisionmaking in this unchartered area,” Collins, 503
U.S., at 125, “an approach grounded in history imposes
limits on the judiciary that are more meaningful than any
based on [an] abstract formula,” Moore, 431 U.S., at 504,
n. 12 (plurality opinion). Expanding a right suddenly and
dramatically is likely to require tearing it up from its
roots. Even a sincere profession of “discipline” in identify-
Cite as: 576 U. S. ____ (2015) 15
ROBERTS, C. J., dissenting
ing fundamental rights, ante, at 10–11, does not provide a
meaningful constraint on a judge, for “what he is really
likely to be ‘discovering,’ whether or not he is fully aware
of it, are his own values,” J. Ely, Democracy and Distrust
44 (1980). The only way to ensure restraint in this deli-
cate enterprise is “continual insistence upon respect for
the teachings of history, solid recognition of the basic
values that underlie our society, and wise appreciation of
the great roles [of] the doctrines of federalism and separa-
tion of powers.” Griswold v. Connecticut, 381 U.S. 479,
501 (1965) (Harlan, J., concurring in judgment).
B
The majority acknowledges none of this doctrinal back-
ground, and it is easy to see why: Its aggressive applica-
tion of substantive due process breaks sharply with dec-
ades of precedent and returns the Court to the
unprincipled approach of Lochner.
1
The majority’s driving themes are that marriage is
desirable and petitioners desire it. The opinion describes
the “transcendent importance” of marriage and repeatedly
insists that petitioners do not seek to “demean,” “devalue,”
“denigrate,” or “disrespect” the institution. Ante, at 3, 4, 6,
28. Nobody disputes those points. Indeed, the compelling
personal accounts of petitioners and others like them are
likely a primary reason why many Americans have
changed their minds about whether same-sex couples
should be allowed to marry. As a matter of constitutional
law, however, the sincerity of petitioners’ wishes is not
relevant.
When the majority turns to the law, it relies primarily
on precedents discussing the fundamental “right to marry.”
Turner v. Safley, 482 U.S. 78, 95 (1987); Zablocki,
434 U.S., at 383; see Loving, 388 U.S., at 12. These cases
16 OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
do not hold, of course, that anyone who wants to get mar-
ried has a constitutional right to do so. They instead
require a State to justify barriers to marriage as that
institution has always been understood. In Loving, the
Court held that racial restrictions on the right to marry
lacked a compelling justification. In Zablocki, restrictions
based on child support debts did not suffice. In Turner,
restrictions based on status as a prisoner were deemed
impermissible.
None of the laws at issue in those cases purported to
change the core definition of marriage as the union of a
man and a woman. The laws challenged in Zablocki and
Turner did not define marriage as “the union of a man and
a woman, where neither party owes child support or is in
prison.” Nor did the interracial marriage ban at issue in
Loving define marriage as “the union of a man and a
woman of the same race.” See Tragen, Comment, Statu-
tory Prohibitions Against Interracial Marriage, 32 Cal.
L. Rev. 269 (1944) (“at common law there was no ban on
interracial marriage”); post, at 11–12, n. 5 (THOMAS, J.,
dissenting). Removing racial barriers to marriage there-
fore did not change what a marriage was any more than
integrating schools changed what a school was. As the
majority admits, the institution of “marriage” discussed in
every one of these cases “presumed a relationship involv-
ing opposite-sex partners.” Ante, at 11.
In short, the “right to marry” cases stand for the im-
portant but limited proposition that particular restrictions
on access to marriage as traditionally defined violate due
process. These precedents say nothing at all about a right
to make a State change its definition of marriage, which is
the right petitioners actually seek here. See Windsor, 570
U. S., at ___ (ALITO, J., dissenting) (slip op., at 8) (“What
Windsor and the United States seek . . . is not the protec-
tion of a deeply rooted right but the recognition of a very
new right.”). Neither petitioners nor the majority cites a
Cite as: 576 U. S. ____ (2015) 17
ROBERTS, C. J., dissenting
single case or other legal source providing any basis for
such a constitutional right. None exists, and that is
enough to foreclose their claim.
2
The majority suggests that “there are other, more in-
structive precedents” informing the right to marry. Ante,
at 12. Although not entirely clear, this reference seems to
correspond to a line of cases discussing an implied funda-
mental “right of privacy.” Griswold, 381 U.S., at 486. In
the first of those cases, the Court invalidated a criminal
law that banned the use of contraceptives. Id., at 485–
486. The Court stressed the invasive nature of the ban,
which threatened the intrusion of “the police to search the
sacred precincts of marital bedrooms.” Id., at 485. In the
Court’s view, such laws infringed the right to privacy in its
most basic sense: the “right to be let alone.” Eisenstadt v.
Baird, 405 U.S. 438, 453–454, n. 10 (1972) (internal quo-
tation marks omitted); see Olmstead v. United States, 277
U.S. 438, 478 (1928) (Brandeis, J., dissenting).
The Court also invoked the right to privacy in Lawrence
v. Texas, 539 U.S. 558 (2003), which struck down a Texas
statute criminalizing homosexual sodomy. Lawrence
relied on the position that criminal sodomy laws, like bans
on contraceptives, invaded privacy by inviting “unwar-
ranted government intrusions” that “touc[h] upon the
most private human conduct, sexual behavior . . . in the
most private of places, the home.” Id., at 562, 567.
Neither Lawrence nor any other precedent in the pri-
vacy line of cases supports the right that petitioners assert
here. Unlike criminal laws banning contraceptives and
sodomy, the marriage laws at issue here involve no gov-
ernment intrusion. They create no crime and impose no
punishment. Same-sex couples remain free to live together,
to engage in intimate conduct, and to raise their fami-
lies as they see fit. No one is “condemned to live in loneli-
18 OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
ness” by the laws challenged in these cases—no one. Ante,
at 28. At the same time, the laws in no way interfere with
the “right to be let alone.”
The majority also relies on Justice Harlan’s influential
dissenting opinion in Poe v. Ullman, 367 U.S. 497 (1961).
As the majority recounts, that opinion states that “[d]ue
process has not been reduced to any formula.” Id., at 542.
But far from conferring the broad interpretive discretion
that the majority discerns, Justice Harlan’s opinion makes
clear that courts implying fundamental rights are not
“free to roam where unguided speculation might take
them.” Ibid. They must instead have “regard to what
history teaches” and exercise not only “judgment” but
“restraint.” Ibid. Of particular relevance, Justice Harlan
explained that “laws regarding marriage which provide
both when the sexual powers may be used and the legal
and societal context in which children are born and
brought up . . . form a pattern so deeply pressed into the
substance of our social life that any Constitutional doc-
trine in this area must build upon that basis.” Id., at 546.
In sum, the privacy cases provide no support for the
majority’s position, because petitioners do not seek pri-
vacy. Quite the opposite, they seek public recognition of
their relationships, along with corresponding government
benefits. Our cases have consistently refused to allow
litigants to convert the shield provided by constitutional
liberties into a sword to demand positive entitlements
from the State. See DeShaney v. Winnebago County Dept.
of Social Servs., 489 U.S. 189, 196 (1989); San Antonio
Independent School Dist. v. Rodriguez, 411 U.S. 1, 35–37
(1973); post, at 9–13 (THOMAS, J., dissenting). Thus,
although the right to privacy recognized by our precedents
certainly plays a role in protecting the intimate conduct of
same-sex couples, it provides no affirmative right to rede-
fine marriage and no basis for striking down the laws at
issue here.
Cite as: 576 U. S. ____ (2015) 19
ROBERTS, C. J., dissenting
3
Perhaps recognizing how little support it can derive
from precedent, the majority goes out of its way to jettison
the “careful” approach to implied fundamental rights
taken by this Court in Glucksberg. Ante, at 18 (quoting
521 U.S., at 721). It is revealing that the majority’s posi-
tion requires it to effectively overrule Glucksberg, the
leading modern case setting the bounds of substantive due
process. At least this part of the majority opinion has the
virtue of candor. Nobody could rightly accuse the majority
of taking a careful approach.
Ultimately, only one precedent offers any support for
the majority’s methodology: Lochner v. New York, 198
U.S. 45. The majority opens its opinion by announcing
petitioners’ right to “define and express their identity.”
Ante, at 1–2. The majority later explains that “the right to
personal choice regarding marriage is inherent in the
concept of individual autonomy.” Ante, at 12. This free-
wheeling notion of individual autonomy echoes nothing so
much as “the general right of an individual to be free in his
person and in his power to contract in relation to his own
labor.” Lochner, 198 U.S., at 58 (emphasis added).
To be fair, the majority does not suggest that its indi-
vidual autonomy right is entirely unconstrained. The
constraints it sets are precisely those that accord with its
own “reasoned judgment,” informed by its “new insight”
into the “nature of injustice,” which was invisible to all
who came before but has become clear “as we learn [the]
meaning” of liberty. Ante, at 10, 11. The truth is that
today’s decision rests on nothing more than the majority’s
own conviction that same-sex couples should be allowed to
marry because they want to, and that “it would disparage
their choices and diminish their personhood to deny them
this right.” Ante, at 19. Whatever force that belief may
have as a matter of moral philosophy, it has no more basis
in the Constitution than did the naked policy preferences
20 OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
adopted in Lochner. See 198 U.S., at 61 (“We do not
believe in the soundness of the views which uphold this
law,” which “is an illegal interference with the rights of
individuals . . . to make contracts regarding labor upon
such terms as they may think best”).
The majority recognizes that today’s cases do not mark
“the first time the Court has been asked to adopt a cau-
tious approach to recognizing and protecting fundamental
rights.” Ante, at 25. On that much, we agree. The Court
was “asked”—and it agreed—to “adopt a cautious ap-
proach” to implying fundamental rights after the debacle
of the Lochner era. Today, the majority casts caution
aside and revives the grave errors of that period.
One immediate question invited by the majority’s posi-
tion is whether States may retain the definition of mar-
riage as a union of two people. Cf. Brown v. Buhman, 947
F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 14-
4117 (CA10). Although the majority randomly inserts the
adjective “two” in various places, it offers no reason at all
why the two-person element of the core definition of mar-
riage may be preserved while the man-woman element
may not. Indeed, from the standpoint of history and tradi-
tion, a leap from opposite-sex marriage to same-sex mar-
riage is much greater than one from a two-person union to
plural unions, which have deep roots in some cultures
around the world. If the majority is willing to take the big
leap, it is hard to see how it can say no to the shorter one.
It is striking how much of the majority’s reasoning
would apply with equal force to the claim of a fundamental
right to plural marriage. If “[t]here is dignity in the bond
between two men or two women who seek to marry and in
their autonomy to make such profound choices,” ante, at
13, why would there be any less dignity in the bond be-
tween three people who, in exercising their autonomy,
seek to make the profound choice to marry? If a same-sex
couple has the constitutional right to marry because their
Cite as: 576 U. S. ____ (2015) 21
ROBERTS, C. J., dissenting
children would otherwise “suffer the stigma of knowing
their families are somehow lesser,” ante, at 15, why
wouldn’t the same reasoning apply to a family of three or
more persons raising children? If not having the oppor-
tunity to marry “serves to disrespect and subordinate” gay
and lesbian couples, why wouldn’t the same “imposition of
this disability,” ante, at 22, serve to disrespect and subor-
dinate people who find fulfillment in polyamorous rela-
tionships? See Bennett, Polyamory: The Next Sexual
Revolution? Newsweek, July 28, 2009 (estimating 500,000
polyamorous families in the United States); Li, Married
Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr.
23, 2014; Otter, Three May Not Be a Crowd: The Case for
a Constitutional Right to Plural Marriage, 64 Emory L. J.
1977 (2015).
I do not mean to equate marriage between same-sex
couples with plural marriages in all respects. There may
well be relevant differences that compel different legal
analysis. But if there are, petitioners have not pointed to
any. When asked about a plural marital union at oral
argument, petitioners asserted that a State “doesn’t have
such an institution.” Tr. of Oral Arg. on Question 2, p. 6.
But that is exactly the point: the States at issue here do
not have an institution of same-sex marriage, either.
4
Near the end of its opinion, the majority offers perhaps
the clearest insight into its decision. Expanding marriage
to include same-sex couples, the majority insists, would
“pose no risk of harm to themselves or third parties.”
Ante, at 27. This argument again echoes Lochner, which
relied on its assessment that “we think that a law like the
one before us involves neither the safety, the morals nor
the welfare of the public, and that the interest of the
public is not in the slightest degree affected by such an
act.” 198 U.S., at 57.
22 OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
Then and now, this assertion of the “harm principle”
sounds more in philosophy than law. The elevation of the
fullest individual self-realization over the constraints that
society has expressed in law may or may not be attractive
moral philosophy. But a Justice’s commission does not
confer any special moral, philosophical, or social insight
sufficient to justify imposing those perceptions on fellow
citizens under the pretense of “due process.” There is
indeed a process due the people on issues of this sort—the
democratic process. Respecting that understanding re-
quires the Court to be guided by law, not any particular
school of social thought. As Judge Henry Friendly once
put it, echoing Justice Holmes’s dissent in Lochner, the
Fourteenth Amendment does not enact John Stuart Mill’s
On Liberty any more than it enacts Herbert Spencer’s
Social Statics. See Randolph, Before Roe v. Wade: Judge
Friendly’s Draft Abortion Opinion, 29 Harv. J. L. & Pub.
Pol’y 1035, 1036–1037, 1058 (2006). And it certainly does
not enact any one concept of marriage.
The majority’s understanding of due process lays out a
tantalizing vision of the future for Members of this Court:
If an unvarying social institution enduring over all of
recorded history cannot inhibit judicial policymaking,
what can? But this approach is dangerous for the rule of
law. The purpose of insisting that implied fundamental
rights have roots in the history and tradition of our people
is to ensure that when unelected judges strike down dem-
ocratically enacted laws, they do so based on something
more than their own beliefs. The Court today not only
overlooks our country’s entire history and tradition but
actively repudiates it, preferring to live only in the heady
days of the here and now. I agree with the majority that
the “nature of injustice is that we may not always see it in
our own times.” Ante, at 11. As petitioners put it, “times
can blind.” Tr. of Oral Arg. on Question 1, at 9, 10. But to
blind yourself to history is both prideful and unwise. “The
Cite as: 576 U. S. ____ (2015) 23
ROBERTS, C. J., dissenting
past is never dead. It’s not even past.” W. Faulkner,
Requiem for a Nun 92 (1951).
III
In addition to their due process argument, petitioners
contend that the Equal Protection Clause requires their
States to license and recognize same-sex marriages. The
majority does not seriously engage with this claim. Its
discussion is, quite frankly, difficult to follow. The central
point seems to be that there is a “synergy between” the
Equal Protection Clause and the Due Process Clause, and
that some precedents relying on one Clause have also
relied on the other. Ante, at 20. Absent from this portion
of the opinion, however, is anything resembling our usual
framework for deciding equal protection cases. It is case-
book doctrine that the “modern Supreme Court’s treat-
ment of equal protection claims has used a means-ends
methodology in which judges ask whether the classifica-
tion the government is using is sufficiently related to the
goals it is pursuing.” G. Stone, L. Seidman, C. Sunstein,
M. Tushnet, & P. Karlan, Constitutional Law 453 (7th ed.
2013). The majority’s approach today is different:
“Rights implicit in liberty and rights secured by equal
protection may rest on different precepts and are not
always co-extensive, yet in some instances each may
be instructive as to the meaning and reach of the
other. In any particular case one Clause may be
thought to capture the essence of the right in a more
accurate and comprehensive way, even as the two
Clauses may converge in the identification and defini-
tion of the right.” Ante, at 19.
The majority goes on to assert in conclusory fashion that
the Equal Protection Clause provides an alternative basis
for its holding. Ante, at 22. Yet the majority fails to pro-
vide even a single sentence explaining how the Equal
24 OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
Protection Clause supplies independent weight for its
position, nor does it attempt to justify its gratuitous viola-
tion of the canon against unnecessarily resolving constitu-
tional questions. See Northwest Austin Municipal Util.
Dist. No. One v. Holder, 557 U.S. 193, 197 (2009). In any
event, the marriage laws at issue here do not violate the
Equal Protection Clause, because distinguishing between
opposite-sex and same-sex couples is rationally related to
the States’ “legitimate state interest” in “preserving the
traditional institution of marriage.” Lawrence, 539 U.S.,
at 585 (O’Connor, J., concurring in judgment).
It is important to note with precision which laws peti-
tioners 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 con-
fronted with a more focused challenge to the denial of
certain tangible benefits. Of course, those more selective
claims will not arise now that the Court has taken the
drastic step of requiring every State to license and recog-
nize marriages between same-sex couples.
IV
The legitimacy of this Court ultimately rests “upon the
respect accorded to its judgments.” Republican Party of
Minn. v. White, 536 U.S. 765, 793 (2002) (KENNEDY, J.,
concurring). That respect flows from the perception—and
reality—that we exercise humility and restraint in decid-
ing cases according to the Constitution and law. The role
of the Court envisioned by the majority today, however, is
anything but humble or restrained. Over and over, the
majority exalts the role of the judiciary in delivering social
change. In the majority’s telling, it is the courts, not the
Cite as: 576 U. S. ____ (2015) 25
ROBERTS, C. J., dissenting
people, who are responsible for making “new dimensions of
freedom . . . apparent to new generations,” for providing
“formal discourse” on social issues, and for ensuring “neu-
tral discussions, without scornful or disparaging commen-
tary.” Ante, at 7–9.
Nowhere is the majority’s extravagant conception of
judicial supremacy more evident than in its description—
and dismissal—of the public debate regarding same-sex
marriage. Yes, the majority concedes, on one side are
thousands of years of human history in every society
known to have populated the planet. But on the other
side, there has been “extensive litigation,” “many thought-
ful District Court decisions,” “countless studies, papers,
books, and other popular and scholarly writings,” and
“more than 100” amicus briefs in these cases alone. Ante,
at 9, 10, 23. What would be the point of allowing the
democratic process to go on? It is high time for the Court
to decide the meaning of marriage, based on five lawyers’
“better informed understanding” of “a liberty that remains
urgent in our own era.” Ante, at 19. The answer is surely
there in one of those amicus briefs or studies.
Those who founded our country would not recognize the
majority’s conception of the judicial role. They after all
risked their lives and fortunes for the precious right to
govern themselves. They would never have imagined
yielding that right on a question of social policy to unac-
countable and unelected judges. And they certainly would
not have been satisfied by a system empowering judges to
override policy judgments so long as they do so after “a
quite extensive discussion.” Ante, at 8. In our democracy,
debate about the content of the law is not an exhaustion
requirement to be checked off before courts can impose
their will. “Surely the Constitution does not put either the
legislative branch or the executive branch in the position
of a television quiz show contestant so that when a given
period of time has elapsed and a problem remains unre-
26 OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
solved by them, the federal judiciary may press a buzzer
and take its turn at fashioning a solution.” Rehnquist,
The Notion of a Living Constitution, 54 Texas L. Rev. 693,
700 (1976). As a plurality of this Court explained just last
year, “It is demeaning to the democratic process to pre-
sume that voters are not capable of deciding an issue of
this sensitivity on decent and rational grounds.” Schuette
v. BAMN, 572 U. S. ___, ___ –___ (2014) (slip op., at 16–
17).
The Court’s accumulation of power does not occur in a
vacuum. It comes at the expense of the people. And they
know it. Here and abroad, people are in the midst of a
serious and thoughtful public debate on the issue of same-
sex marriage. They see voters carefully considering same-
sex marriage, casting ballots in favor or opposed, and
sometimes changing their minds. They see political lead-
ers similarly reexamining their positions, and either re-
versing course or explaining adherence to old convictions
confirmed anew. They see governments and businesses
modifying policies and practices with respect to same-sex
couples, and participating actively in the civic discourse.
They see countries overseas democratically accepting
profound social change, or declining to do so. This delib-
erative process is making people take seriously questions
that they may not have even regarded as questions before.
When decisions are reached through democratic means,
some people will inevitably be disappointed with the re-
sults. But those whose views do not prevail at least know
that they have had their say, and accordingly are—in the
tradition of our political culture—reconciled to the result
of a fair and honest debate. In addition, they can gear up
to raise the issue later, hoping to persuade enough on the
winning side to think again. “That is exactly how our
system of government is supposed to work.” Post, at 2–3
(SCALIA, J., dissenting).
But today the Court puts a stop to all that. By deciding
Cite as: 576 U. S. ____ (2015) 27
ROBERTS, C. J., dissenting
this question under the Constitution, the Court removes it
from the realm of democratic decision. There will be
consequences to shutting down the political process on an
issue of such profound public significance. Closing debate
tends to close minds. People denied a voice are less likely
to accept the ruling of a court on an issue that does not
seem to be the sort of thing courts usually decide. As a
thoughtful commentator observed about another issue,
“The political process was moving . . . , not swiftly enough
for advocates of quick, complete change, but majoritarian
institutions were listening and acting. Heavy-handed
judicial intervention was difficult to justify and appears to
have provoked, not resolved, conflict.” Ginsburg, Some
Thoughts on Autonomy and Equality in Relation to Roe v.
Wade, 63 N. C. L. Rev. 375, 385–386 (1985) (footnote
omitted). Indeed, however heartened the proponents of
same-sex marriage might be on this day, it is worth ac-
knowledging what they have lost, and lost forever: the
opportunity to win the true acceptance that comes from
persuading their fellow citizens of the justice of their
cause. And they lose this just when the winds of change
were freshening at their backs.
Federal courts are blunt instruments when it comes to
creating rights. They have constitutional power only to
resolve concrete cases or controversies; they do not have
the flexibility of legislatures to address concerns of parties
not before the court or to anticipate problems that may
arise from the exercise of a new right. Today’s decision,
for example, creates serious questions about 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. Amdt. 1.
Respect for sincere religious conviction has led voters
and legislators in every State that has adopted same-sex
marriage democratically to include accommodations for
28 OBERGEFELL v. HODGES
ROBERTS, C. J., dissenting
religious practice. The majority’s decision imposing same-
sex marriage cannot, of course, create any such accommo-
dations. The majority graciously suggests that religious
believers may continue to “advocate” and “teach” their
views of marriage. Ante, at 27. The First Amendment
guarantees, however, the freedom to “exercise” religion.
Ominously, that is not a word the majority uses.
Hard questions arise when people of faith exercise
religion in ways that may be seen to conflict with the new
right to same-sex marriage—when, for example, a reli-
gious college provides married student housing only to
opposite-sex married couples, or a religious adoption
agency declines to place children with same-sex married
couples. Indeed, the Solicitor General candidly acknowl-
edged that the tax exemptions of some religious institu-
tions would be in question if they opposed same-sex mar-
riage. See Tr. of Oral Arg. on Question 1, at 36–38. There
is little doubt that these and similar questions will soon be
before this Court. Unfortunately, people of faith can take
no comfort in the treatment they receive from the majority
today.
Perhaps the most discouraging aspect of today’s decision
is the extent to which the majority feels compelled to sully
those on the other side of the debate. The majority offers a
cursory assurance that it does not intend to disparage
people who, as a matter of conscience, cannot accept same-
sex marriage. Ante, at 19. That disclaimer is hard to
square with the very next sentence, in which the majority
explains that “the necessary consequence” of laws codify-
ing the traditional definition of marriage is to “demea[n]
or stigmatiz[e]” same-sex couples. Ante, at 19. The major-
ity reiterates such characterizations over and over. By the
majority’s account, Americans who did nothing more than
follow the understanding of marriage that has existed for
our entire history—in particular, the tens of millions of
people who voted to reaffirm their States’ enduring defini-
Cite as: 576 U. S. ____ (2015) 29
ROBERTS, C. J., dissenting
tion of marriage—have acted to “lock . . . out,” “disparage,”
“disrespect and subordinate,” and inflict “[d]ignitary
wounds” upon their gay and lesbian neighbors. Ante, at
17, 19, 22, 25. These apparent assaults on the character of
fairminded people will have an effect, in society and in
court. See post, at 6–7 (ALITO, J., dissenting). Moreover,
they are entirely gratuitous. It is one thing for the major-
ity to conclude that the Constitution protects a right to
same-sex marriage; it is something else to portray every-
one who does not share the majority’s “better informed
understanding” as bigoted. Ante, at 19.
In the face of all this, a much different view of the
Court’s role is possible. That view is more modest and
restrained. It is more skeptical that the legal abilities of
judges also reflect insight into moral and philosophical
issues. It is more sensitive to the fact that judges are
unelected and unaccountable, and that the legitimacy of
their power depends on confining it to the exercise of legal
judgment. It is more attuned to the lessons of history, and
what it has meant for the country and Court when Jus-
tices have exceeded their proper bounds. And it is less
pretentious than to suppose that while people around the
world have viewed an institution in a particular way for
thousands of years, the present generation and the pre-
sent Court are the ones chosen to burst the bonds of that
history and tradition.
* * *
If you are among the many Americans—of whatever
sexual orientation—who favor expanding same-sex mar-
riage, by all means celebrate today’s decision. Celebrate
the achievement of a desired goal. Celebrate the oppor-
tunity for a new expression of commitment to a partner.
Celebrate the availability of new benefits. But do not
celebrate the Constitution. It had nothing to do with it.
I respectfully dissent.
Cite as: 576 U. S. ____ (2015) 1
SCALIA, 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]
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
dissenting.
I join THE CHIEF JUSTICE’s opinion in full. I write sepa-
rately to call attention to this Court’s threat to American
democracy.
The substance of today’s decree is not of immense per-
sonal importance to me. The law can recognize as mar-
riage whatever sexual attachments and living arrange-
ments it wishes, and can accord them favorable civil
consequences, from tax treatment to rights of inheritance.
2 OBERGEFELL v. HODGES
SCALIA, J., dissenting
Those civil consequences—and the public approval that
conferring the name of marriage evidences—can perhaps
have adverse social effects, but no more adverse than the
effects of many other controversial laws. So it is not of
special importance to me what the law says about mar-
riage. It is of overwhelming importance, however, who it
is that rules me. Today’s decree says that my Ruler, and
the Ruler of 320 million Americans coast-to-coast, is a
majority of the nine lawyers on the Supreme Court. The
opinion in these cases is the furthest extension in fact—
and the furthest extension one can even imagine—of the
Court’s claimed power to create “liberties” that the Consti-
tution and its Amendments neglect to mention. This
practice of constitutional revision by an unelected commit-
tee of nine, always accompanied (as it is today) by extrav-
agant praise of liberty, robs the People of the most im-
portant liberty they asserted in the Declaration of
Independence and won in the Revolution of 1776: the
freedom to govern themselves.
I
Until the courts put a stop to it, public debate over
same-sex marriage displayed American democracy at its
best. Individuals on both sides of the issue passionately,
but respectfully, attempted to persuade their fellow citi-
zens to accept their views. Americans considered the
arguments and put the question to a vote. The electorates
of 11 States, either directly or through their representa-
tives, chose to expand the traditional definition of mar-
riage. Many more decided not to.1 Win or lose, advocates
for both sides continued pressing their cases, secure in the
knowledge that an electoral loss can be negated by a later
electoral win. That is exactly how our system of govern-
——————
1 Brief for Respondents in No. 14–571, p. 14.
Cite as: 576 U. S. ____ (2015) 3
SCALIA, J., dissenting
ment is supposed to work.2
The Constitution places some constraints on self-rule—
constraints adopted by the People themselves when they
ratified the Constitution and its Amendments. Forbidden
are laws “impairing the Obligation of Contracts,”3 denying
“Full Faith and Credit” to the “public Acts” of other
States,4 prohibiting the free exercise of religion,5 abridging
the freedom of speech,6 infringing the right to keep and
bear arms,7 authorizing unreasonable searches and sei-
zures,8 and so forth. Aside from these limitations, those
powers “reserved to the States respectively, or to the
people”9 can be exercised as the States or the People de-
sire. These cases ask us to decide whether the Fourteenth
Amendment contains a limitation that requires the States
to license and recognize marriages between two people of
the same sex. Does it remove that issue from the political
process?
Of course not. It would be surprising to find a prescrip-
tion regarding marriage in the Federal Constitution since,
as the author of today’s opinion reminded us only two
years ago (in an opinion joined by the same Justices who
join him today):
“[R]egulation of domestic relations is an area that has
long been regarded as a virtually exclusive province of
the States.”10
——————
2 Accord, Schuette v. BAMN, 572 U. S. ___, ___–___ (2014) (plurality
opinion) (slip op., at 15–17).
3 U. S. Const., Art. I, §10.
4 Art. IV, §1.
5 Amdt. 1.
6 Ibid.
7 Amdt. 2.
8 Amdt. 4.
9 Amdt. 10.
10 United States v. Windsor, 570 U. S. ___, ___ (2013) (slip op., at 16)
(internal quotation marks and citation omitted).
4 OBERGEFELL v. HODGES
SCALIA, J., dissenting
“[T]he Federal Government, through our history, has
deferred to state-law policy decisions with respect to
domestic relations.”11
But we need not speculate. When the Fourteenth
Amendment was ratified in 1868, every State limited
marriage to one man and one woman, and no one doubted
the constitutionality of doing so. That resolves these
cases. When it comes to determining the meaning of a
vague constitutional provision—such as “due process of
law” or “equal protection of the laws”—it is unquestionable
that the People who ratified that provision did not under-
stand it to prohibit a practice that remained both univer-
sal and uncontroversial in the years after ratification.12
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 what-
ever that the People never decided to prohibit the limita-
tion 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. Buried beneath the mummeries
and straining-to-be-memorable passages of the opinion is a
candid and startling assertion: No matter what it was the
People ratified, the Fourteenth Amendment protects those
rights that the Judiciary, in its “reasoned judgment,”
thinks the Fourteenth Amendment ought to protect.13
That is so because “[t]he generations that wrote and rati-
fied the Bill of Rights and the Fourteenth Amendment did
not presume to know the extent of freedom in all of its
——————
11 Id.,
at ___ (slip op., at 17).
12 See
Town of Greece v. Galloway, 572 U. S. ___, ___–___ (2014) (slip
op., at 7–8).
13 Ante, at 10.
Cite as: 576 U. S. ____ (2015) 5
SCALIA, J., dissenting
dimensions . . . . ”14 One would think that sentence would
continue: “. . . and therefore they provided for a means by
which the People could amend the Constitution,” or per-
haps “. . . and therefore they left the creation of additional
liberties, such as the freedom to marry someone of the
same sex, to the People, through the never-ending process
of legislation.” But no. What logically follows, in the
majority’s judge-empowering estimation, is: “and so they
entrusted to future generations a charter protecting the
right of all persons to enjoy liberty as we learn its mean-
ing.”15 The “we,” needless to say, is the nine of us. “History
and tradition guide and discipline [our] inquiry but do
not set its outer boundaries.”16 Thus, rather than focusing
on the People’s understanding of “liberty”—at the time of
ratification or even today—the majority focuses on four
“principles and traditions” that, in the majority’s view,
prohibit States from defining marriage as an institution
consisting of one man and one woman.17
This is a naked judicial claim to legislative—indeed,
super-legislative—power; a claim fundamentally at odds
with our system of government. Except as limited by a
constitutional prohibition agreed to by the People, the
States are free to adopt whatever laws they like, even
those that offend the esteemed Justices’ “reasoned judg-
ment.” A system of government that makes the People
subordinate to a committee of nine unelected lawyers does
not deserve to be called a democracy.
Judges are selected precisely for their skill as lawyers;
whether they reflect the policy views of a particular con-
stituency is not (or should not be) relevant. Not surpris-
ingly then, the Federal Judiciary is hardly a cross-section
——————
14 Ante, at 11.
15 Ibid.
16 Ante, at 10–11.
17 Ante, at 12–18.
6 OBERGEFELL v. HODGES
SCALIA, J., dissenting
of America. Take, for example, this Court, which consists
of only nine men and women, all of them successful law-
yers18 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 South-
westerner 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
Americans19), 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.
II
But what really astounds is the hubris reflected in
today’s judicial Putsch. The five Justices who compose
today’s majority are entirely comfortable concluding that
——————
18 The
predominant attitude of tall-building lawyers with respect to
the questions presented in these cases is suggested by the fact that the
American Bar Association deemed it in accord with the wishes of its
members to file a brief in support of the petitioners. See Brief for
American Bar Association as Amicus Curiae in Nos. 14–571 and 14–
574, pp. 1–5.
19 See Pew Research Center, America’s Changing Religious Land-
scape 4 (May 12, 2015).
Cite as: 576 U. S. ____ (2015) 7
SCALIA, J., dissenting
every State violated the Constitution for all of the 135
years between the Fourteenth Amendment’s ratification
and Massachusetts’ permitting of same-sex marriages in
2003.20 They have discovered in the Fourteenth Amend-
ment a “fundamental right” overlooked by every person
alive at the time of ratification, and almost everyone else
in the time since. They see what lesser legal minds—
minds like Thomas Cooley, John Marshall Harlan, Oliver
Wendell Holmes, Jr., Learned Hand, Louis Brandeis,
William Howard Taft, Benjamin Cardozo, Hugo Black,
Felix Frankfurter, Robert Jackson, and Henry Friendly—
could not. They are certain that the People ratified the
Fourteenth Amendment to bestow on them the power to
remove questions from the democratic process when that
is called for by their “reasoned judgment.” These Justices
know that limiting marriage to one man and one woman is
contrary to reason; they know that an institution as old as
government itself, and accepted by every nation in history
until 15 years ago,21 cannot possibly be supported by
anything other than ignorance or bigotry. And they are
willing to say that any citizen who does not agree with
that, who adheres to what was, until 15 years ago, the
unanimous judgment of all generations and all societies,
stands against the Constitution.
The opinion is couched in a style that is as pretentious
as its content is egotistic. It is one thing for separate con-
curring or dissenting opinions to contain extravagances,
even silly extravagances, of thought and expression; it is
something else for the official opinion of the Court to do
so.22 Of course the opinion’s showy profundities are often
——————
20 Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.
2d 941 (2003).
21 Windsor, 570 U. S., at ___ (ALITO, J., dissenting) (slip op., at 7).
22 If, even as the price to be paid for a fifth vote, I ever joined an opin-
ion for the Court that began: “The Constitution promises liberty to all
within its reach, a liberty that includes certain specific rights that
8 OBERGEFELL v. HODGES
SCALIA, J., dissenting
profoundly incoherent. “The nature of marriage is that,
through its enduring bond, two persons together can find
other freedoms, such as expression, intimacy, and spiritu-
ality.”23 (Really? Who ever thought that intimacy and
spirituality [whatever that means] were freedoms? And if
intimacy is, one would think Freedom of Intimacy is
abridged rather than expanded by marriage. Ask the
nearest hippie. Expression, sure enough, is a freedom, but
anyone in a long-lasting marriage will attest that that
happy state constricts, rather than expands, what one can
prudently say.) Rights, we are told, can “rise . . . from a
better informed understanding of how constitutional
imperatives define a liberty that remains urgent in our
own era.”24 (Huh? How can a better informed under-
standing of how constitutional imperatives [whatever that
means] define [whatever that means] an urgent liberty
[never mind], give birth to a right?) And we are told that,
“[i]n any particular case,” either the Equal Protection or
Due Process Clause “may be thought to capture the es-
sence of [a] right in a more accurate and comprehensive
way,” than the other, “even as the two Clauses may con-
verge in the identification and definition of the right.”25
(What say? What possible “essence” does substantive due
process “capture” in an “accurate and comprehensive
way”? It stands for nothing whatever, except those free-
doms and entitlements that this Court really likes. And
the Equal Protection Clause, as employed today, identifies
nothing except a difference in treatment that this Court
——————
allow persons, within a lawful realm, to define and express their
identity,” I would hide my head in a bag. The Supreme Court of the
United States has descended from the disciplined legal reasoning of
John Marshall and Joseph Story to the mystical aphorisms of the
fortune cookie.
23 Ante, at 13.
24 Ante, at 19.
25 Ibid.
Cite as: 576 U. S. ____ (2015) 9
SCALIA, J., dissenting
really dislikes. Hardly a distillation of essence. If the
opinion is correct that the two clauses “converge in the
identification and definition of [a] right,” that is only
because the majority’s likes and dislikes are predictably
compatible.) I could go on. The world does not expect
logic and precision in poetry or inspirational pop-
philosophy; it demands them in the law. The stuff con-
tained in today’s opinion has to diminish this Court’s
reputation for clear thinking and sober analysis.
* * *
Hubris is sometimes defined as o’erweening pride; and
pride, we know, goeth before a fall. The Judiciary is the
“least dangerous” of the federal branches because it has
“neither Force nor Will, but merely judgment; and must
ultimately depend upon the aid of the executive arm” and
the States, “even for the efficacy of its judgments.”26 With
each decision of ours that takes from the People a question
properly left to them—with each decision that is unabash-
edly based not on law, but on the “reasoned judgment” of a
bare majority of this Court—we move one step closer to
being reminded of our impotence.
——————
26 The Federalist No. 78, pp. 522, 523 (J. Cooke ed. 1961) (A. Hamil-
ton).
Cite as: 576 U. S. ____ (2015) 1
THOMAS, 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]
JUSTICE THOMAS, with whom JUSTICE SCALIA joins,
dissenting.
The Court’s decision today is at odds not only with the
Constitution, but with the principles upon which our
Nation was built. Since well before 1787, liberty has been
understood as freedom from government action, not enti-
tlement to government benefits. The Framers created our
2 OBERGEFELL v. HODGES
THOMAS, J., dissenting
Constitution to preserve that understanding of liberty.
Yet the 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. This distor-
tion of our Constitution not only ignores the text, it inverts
the relationship between the individual and the state in
our Republic. I cannot agree with it.
I
The majority’s decision today will require States to issue
marriage licenses to same-sex couples and to recognize
same-sex marriages entered in other States largely based
on a constitutional provision guaranteeing “due process”
before a person is deprived of his “life, liberty, or prop-
erty.” I have elsewhere explained the dangerous fiction of
treating the Due Process Clause as a font of substantive
rights. McDonald v. Chicago, 561 U.S. 742, 811–812
(2010) (THOMAS, J., concurring in part and concurring in
judgment). It distorts the constitutional text, which guar-
antees only whatever “process” is “due” before a person is
deprived of life, liberty, and property. U. S. Const., Amdt.
14, §1. Worse, it invites judges to do exactly what the
majority has done here—“ ‘roa[m] at large in the constitu-
tional field’ guided only by their personal views” as to the
“ ‘fundamental rights’ ” protected by that document.
Planned Parenthood of Southeastern Pa. v. Casey, 505
U.S. 833, 953, 965 (1992) (Rehnquist, C. J., concurring in
judgment in part and dissenting in part) (quoting Gris-
wold v. Connecticut, 381 U.S. 479, 502 (1965) (Harlan, J.,
concurring in judgment)).
By straying from the text of the Constitution, substan-
tive due process exalts judges at the expense of the People
from whom they derive their authority. Petitioners argue
Cite as: 576 U. S. ____ (2015) 3
THOMAS, J., dissenting
that by enshrining the traditional definition of marriage in
their State Constitutions through voter-approved amend-
ments, the States have put the issue “beyond the reach of
the normal democratic process.” Brief for Petitioners in
No. 14–562, p. 54. But the result petitioners seek is far
less democratic. They ask nine judges on this Court to
enshrine their definition of marriage in the Federal Con-
stitution and thus put it beyond the reach of the normal
democratic process for the entire Nation. That a “bare
majority” of this Court, ante, at 25, is able to grant this
wish, wiping out with a stroke of the keyboard the results
of the political process in over 30 States, based on a provi-
sion that guarantees only “due process” is but further
evidence of the danger of substantive due process.1
II
Even if the doctrine of substantive due process were
somehow defensible—it is not—petitioners still would not
have a claim. To invoke the protection of the Due Process
Clause at all—whether under a theory of “substantive” or
“procedural” due process—a party must first identify a
deprivation of “life, liberty, or property.” The majority
claims these state laws deprive petitioners of “liberty,” but
the concept of “liberty” it conjures up bears no resem-
blance to any plausible meaning of that word as it is used
in the Due Process Clauses.
——————
1 The majority states that the right it believes is “part of the liberty
promised by the Fourteenth Amendment is derived, too, from that
Amendment’s guarantee of the equal protection of the laws.” Ante, at
19. Despite the “synergy” it finds “between th[ese] two protections,”
ante, at 20, the majority clearly uses equal protection only to shore up
its substantive due process analysis, an analysis both based on an
imaginary constitutional protection and revisionist view of our history
and tradition.
4 OBERGEFELL v. HODGES
THOMAS, J., dissenting
A
1
As used in the Due Process Clauses, “liberty” most likely
refers to “the power of loco-motion, of changing situation,
or removing one’s person to whatsoever place one’s own
inclination may direct; without imprisonment or restraint,
unless by due course of law.” 1 W. Blackstone, Commen-
taries on the Laws of England 130 (1769) (Blackstone).
That definition is drawn from the historical roots of the
Clauses and is consistent with our Constitution’s text and
structure.
Both of the Constitution’s Due Process Clauses reach
back to Magna Carta. See Davidson v. New Orleans, 96
U.S. 97, 101–102 (1878). Chapter 39 of the original
Magna Carta provided, “No free man shall be taken, im-
prisoned, disseised, outlawed, banished, or in any way
destroyed, nor will We proceed against or prosecute him,
except by the lawful judgment of his peers and by the law
of the land.” Magna Carta, ch. 39, in A. Howard, Magna
Carta: Text and Commentary 43 (1964). Although the
1215 version of Magna Carta was in effect for only a few
weeks, this provision was later reissued in 1225 with
modest changes to its wording as follows: “No freeman
shall be taken, or imprisoned, or be disseised of his free-
hold, or liberties, or free customs, or be outlawed, or ex-
iled, or any otherwise destroyed; nor will we not pass upon
him, nor condemn him, but by lawful judgment of his
peers or by the law of the land.” 1 E. Coke, The Second
Part of the Institutes of the Laws of England 45 (1797). In
his influential commentary on the provision many years
later, Sir Edward Coke interpreted the words “by the law
of the land” to mean the same thing as “by due proces of
the common law.” Id., at 50.
After Magna Carta became subject to renewed interest
in the 17th century, see, e.g., ibid., William Blackstone
referred to this provision as protecting the “absolute rights
Cite as: 576 U. S. ____ (2015) 5
THOMAS, J., dissenting
of every Englishman.” 1 Blackstone 123. And he formu-
lated those absolute rights as “the right of personal secu-
rity,” which included the right to life; “the right of personal
liberty”; and “the right of private property.” Id., at 125.
He defined “the right of personal liberty” as “the power of
loco-motion, of changing situation, or removing one’s
person to whatsoever place one’s own inclination may
direct; without imprisonment or restraint, unless by due
course of law.” Id., at 125, 130.2
The Framers drew heavily upon Blackstone’s formula-
tion, adopting provisions in early State Constitutions that
replicated Magna Carta’s language, but were modified to
refer specifically to “life, liberty, or property.”3 State
——————
2 The seeds of this articulation can also be found in Henry Care’s
influential treatise, English Liberties. First published in America in
1721, it described the “three things, which the Law of England . . .
principally regards and taketh Care of,” as “Life, Liberty and Estate,”
and described habeas corpus as the means by which one could procure
one’s “Liberty” from imprisonment. The Habeas Corpus Act, comment.,
in English Liberties, or the Free-born Subject’s Inheritance 185 (H.
Care comp. 5th ed. 1721). Though he used the word “Liberties” by itself
more broadly, see, e.g., id., at 7, 34, 56, 58, 60, he used “Liberty” in a
narrow sense when placed alongside the words “Life” or “Estate,” see,
e.g., id., at 185, 200.
3 Maryland, North Carolina, and South Carolina adopted the phrase
“life, liberty, or property” in provisions otherwise tracking Magna
Carta: “That no freeman ought to be taken, or imprisoned, or disseized
of his freehold, liberties, or privileges, or outlawed, or exiled, or in any
manner destroyed, or deprived of his life, liberty, or property, but by
the judgment of his peers, or by the law of the land.” Md. Const.,
Declaration of Rights, Art. XXI (1776), in 3 Federal and State Constitu-
tions, Colonial Charters, and Other Organic Laws 1688 (F. Thorpe ed.
1909); see also S. C. Const., Art. XLI (1778), in 6 id., at 3257; N. C.
Const., Declaration of Rights, Art. XII (1776), in 5 id., at 2788. Massa-
chusetts and New Hampshire did the same, albeit with some altera-
tions to Magna Carta’s framework: “[N]o subject shall be arrested,
imprisoned, despoiled, or deprived of his property, immunities, or
privileges, put out of the protection of the law, exiled, or deprived of his
life, liberty, or estate, but by the judgment of his peers, or the law of the
land.” Mass. Const., pt. I, Art. XII (1780), in 3 id., at 1891; see also
6 OBERGEFELL v. HODGES
THOMAS, J., dissenting
decisions interpreting these provisions between the found-
ing and the ratification of the Fourteenth Amendment
almost uniformly construed the word “liberty” to refer only
to freedom from physical restraint. See Warren, The New
“Liberty” Under the Fourteenth Amendment, 39 Harv.
L. Rev. 431, 441–445 (1926). Even one case that has been
identified as a possible exception to that view merely used
broad language about liberty in the context of a habeas
corpus proceeding—a proceeding classically associated
with obtaining freedom from physical restraint. Cf. id., at
444–445.
In enacting the Fifth Amendment’s Due Process Clause,
the Framers similarly chose to employ the “life, liberty, or
property” formulation, though they otherwise deviated
substantially from the States’ use of Magna Carta’s lan-
guage in the Clause. See Shattuck, The True Meaning of
the Term “Liberty” in Those Clauses in the Federal and
State Constitutions Which Protect “Life, Liberty, and
Property,” 4 Harv. L. Rev. 365, 382 (1890). When read in
light of the history of that formulation, it is hard to see
how the “liberty” protected by the Clause could be inter-
preted to include anything broader than freedom from
physical restraint. That was the consistent usage of the
time when “liberty” was paired with “life” and “property.”
See id., at 375. And that usage avoids rendering superflu-
ous those protections for “life” and “property.”
If the Fifth Amendment uses “liberty” in this narrow
sense, then the Fourteenth Amendment likely does as
well. See Hurtado v. California, 110 U.S. 516, 534–535
(1884). Indeed, this Court has previously commented,
“The conclusion is . . . irresistible, that when the same
phrase was employed in the Fourteenth Amendment [as
was used in the Fifth Amendment], it was used in the
same sense and with no greater extent.” Ibid. And this
——————
N. H. Const., pt. I, Art. XV (1784), in 4 id., at 2455.
 Cite as: 576 U. S. ____ (2015) 7
THOMAS, J., dissenting
Court’s earliest Fourteenth Amendment decisions appear
to interpret the Clause as using “liberty” to mean freedom
from physical restraint. In Munn v. Illinois, 94 U.S. 113
(1877), for example, the Court recognized the relationship
between the two Due Process Clauses and Magna Carta,
see id., at 123–124, and implicitly rejected the dissent’s
argument that “ ‘liberty’ ” encompassed “something more
. . . than mere freedom from physical restraint or the
bounds of a prison,” id., at 142 (Field, J., dissenting). That
the Court appears to have lost its way in more recent
years does not justify deviating from the original meaning
of the Clauses.
2
Even assuming that the “liberty” in those Clauses en-
compasses something more than freedom from physical
restraint, it would not include the types of rights claimed
by the majority. In the American legal tradition, liberty
has long been understood as individual freedom from
governmental action, not as a right to a particular gov-
ernmental entitlement.
The founding-era understanding of liberty was heavily
influenced by John Locke, whose writings “on natural
rights and on the social and governmental contract” were
cited “[i]n pamphlet after pamphlet” by American writers.
B. Bailyn, The Ideological Origins of the American Revolu-
tion 27 (1967). Locke described men as existing in a state
of nature, possessed of the “perfect freedom to order their
actions and dispose of their possessions and persons as
they think fit, within the bounds of the law of nature,
without asking leave, or depending upon the will of any
other man.” J. Locke, Second Treatise of Civil Govern-
ment, §4, p. 4 (J. Gough ed. 1947) (Locke). Because that
state of nature left men insecure in their persons and
property, they entered civil society, trading a portion of
their natural liberty for an increase in their security. See
8 OBERGEFELL v. HODGES
THOMAS, J., dissenting
id., §97, at 49. Upon consenting to that order, men ob-
tained civil liberty, or the freedom “to be under no other
legislative power but that established by consent in the
commonwealth; nor under the dominion of any will or
restraint of any law, but what that legislative shall enact
according to the trust put in it.” Id., §22, at 13.4
This philosophy permeated the 18th-century political
scene in America. A 1756 editorial in the Boston Gazette,
for example, declared that “Liberty in the State of Nature”
was the “inherent natural Right” “of each Man” “to make a
free Use of his Reason and Understanding, and to chuse
that Action which he thinks he can give the best Account
of,” but that, “in Society, every Man parts with a Small
Share of his natural Liberty, or lodges it in the publick
Stock, that he may possess the Remainder without Con-
troul.” Boston Gazette and Country Journal, No. 58, May
10, 1756, p. 1. Similar sentiments were expressed in
public speeches, sermons, and letters of the time. See 1 C.
——————
4 Locke’s theories heavily influenced other prominent writers of the
17th and 18th centuries. Blackstone, for one, agreed that “natural
liberty consists properly in a power of acting as one thinks fit, without
any restraint or control, unless by the law of nature” and described civil
liberty as that “which leaves the subject entire master of his own
conduct,” except as “restrained by human laws.” 1 Blackstone 121–122.
And in a “treatise routinely cited by the Founders,” Zivotofsky v. Kerry,
ante, at 5 (THOMAS, J., concurring in judgment in part and dissenting in
part), Thomas Rutherforth wrote, “By liberty we mean the power,
which a man has to act as he thinks fit, where no law restrains him; it
may therefore be called a mans right over his own actions.” 1 T. Ruth-
erforth, Institutes of Natural Law 146 (1754). Rutherforth explained
that “[t]he only restraint, which a mans right over his own actions is
originally under, is the obligation of governing himself by the law of
nature, and the law of God,” and that “[w]hatever right those of our
own species may have . . . to restrain [those actions] within certain
bounds, beyond what the law of nature has prescribed, arises from
some after-act of our own, from some consent either express or tacit, by
which we have alienated our liberty, or transferred the right of direct-
ing our actions from ourselves to them.” Id., at 147–148.
 Cite as: 576 U. S. ____ (2015) 9
THOMAS, J., dissenting
Hyneman & D. Lutz, American Political Writing During
the Founding Era 1760–1805, pp. 100, 308, 385 (1983).
The founding-era idea of civil liberty as natural liberty
constrained by human law necessarily involved only those
freedoms that existed outside of government. See Ham-
burger, Natural Rights, Natural Law, and American
Constitutions, 102 Yale L. J. 907, 918–919 (1993). As one
later commentator observed, “[L]iberty in the eighteenth
century was thought of much more in relation to ‘negative
liberty’; that is, freedom from, not freedom to, freedom
from a number of social and political evils, including arbi-
trary government power.” J. Reid, The Concept of Liberty
in the Age of the American Revolution 56 (1988). Or as
one scholar put it in 1776, “[T]he common idea of liberty is
merely negative, and is only the absence of restraint.” R.
Hey, Observations on the Nature of Civil Liberty and the
Principles of Government §13, p. 8 (1776) (Hey). When the
colonists described laws that would infringe their liberties,
they discussed laws that would prohibit individuals “from
walking in the streets and highways on certain saints
days, or from being abroad after a certain time in the
evening, or . . . restrain [them] from working up and man-
ufacturing materials of [their] own growth.” Downer, A
Discourse at the Dedication of the Tree of Liberty, in 1
Hyneman, supra, at 101. Each of those examples involved
freedoms that existed outside of government.
B
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. They
10 OBERGEFELL v. HODGES
THOMAS, J., dissenting
have been able to hold civil marriage ceremonies in States
that recognize same-sex marriages and private religious
ceremonies in all States. They have been able to travel
freely around the country, making their homes where they
please. Far from being incarcerated or physically re-
strained, petitioners have been left alone to order their
lives as they see fit.
Nor, under the broader definition, can they claim that
the States have restricted their ability to go about their
daily lives as they would be able to absent governmental
restrictions. Petitioners do not ask this Court to order the
States to stop restricting their ability to enter same-sex
relationships, to engage in intimate behavior, to make
vows to their partners in public ceremonies, to engage in
religious wedding ceremonies, to hold themselves out as
married, or to raise children. The States have imposed no
such restrictions. Nor have the States prevented petition-
ers from approximating a number of incidents of marriage
through private legal means, such as wills, trusts, and
powers of attorney.
Instead, the States have refused to grant them govern-
mental entitlements. Petitioners claim that as a matter of
“liberty,” they are entitled to access privileges and benefits
that exist solely because of the government. They want,
for example, to receive the State’s imprimatur on their
marriages—on state issued marriage licenses, death certif-
icates, or other official forms. And they want to receive
various monetary benefits, including reduced inheritance
taxes upon the death of a spouse, compensation if a spouse
dies as a result of a work-related injury, or loss of consor-
tium damages in tort suits. But receiving governmental
recognition and benefits has nothing to do with any un-
derstanding of “liberty” that the Framers would have
recognized.
To the extent that the Framers would have recognized a
natural right to marriage that fell within the broader
Cite as: 576 U. S. ____ (2015) 11
THOMAS, J., dissenting
definition of liberty, it would not have included a right to
governmental recognition and benefits. Instead, it would
have included a right to engage in the very same activities
that petitioners have been left free to engage in—making
vows, holding religious ceremonies celebrating those vows,
raising children, and otherwise enjoying the society of
one’s spouse—without governmental interference. At the
founding, such conduct was understood to predate gov-
ernment, not to flow from it. As Locke had explained
many years earlier, “The first society was between man
and wife, which gave beginning to that between parents
and children.” Locke §77, at 39; see also J. Wilson, Lec-
tures on Law, in 2 Collected Works of James Wilson 1068
(K. Hall and M. Hall eds. 2007) (concluding “that to the
institution of marriage the true origin of society must be
traced”). Petitioners misunderstand the institution of
marriage when they say that it would “mean little” absent
governmental recognition. Brief for Petitioners in No. 14–
556, p. 33.
Petitioners’ misconception of liberty carries over into
their discussion of our precedents identifying a right to
marry, not one of which has expanded the concept of “lib-
erty” beyond the concept of negative liberty. Those prece-
dents all involved absolute prohibitions on private actions
associated with marriage. Loving v. Virginia, 388 U.S. 1
(1967), for example, involved a couple who was criminally
prosecuted for marrying in the District of Columbia and
cohabiting in Virginia, id., at 2–3.5 They were each sen-
——————
5 The suggestion of petitioners and their amici that antimiscegenation
laws are akin to laws defining marriage as between one man and one
woman is both offensive and inaccurate. “America’s earliest laws
against interracial sex and marriage were spawned by slavery.” P.
Pascoe, What Comes Naturally: Miscegenation Law and the Making of
Race in America 19 (2009). For instance, Maryland’s 1664 law prohibit-
ing marriages between “ ‘freeborne English women’ ” and “ ‘Negro
Sla[v]es’ ” was passed as part of the very act that authorized lifelong
12 OBERGEFELL v. HODGES
THOMAS, J., dissenting
tenced to a year of imprisonment, suspended for a term of
25 years on the condition that they not reenter the Com-
monwealth together during that time. Id., at 3.6 In a
similar vein, Zablocki v. Redhail, 434 U.S. 374 (1978),
involved a man who was prohibited, on pain of criminal
penalty, from “marry[ing] in Wisconsin or elsewhere”
because of his outstanding child-support obligations, id.,
at 387; see id., at 377–378. And Turner v. Safley, 482
U.S. 78 (1987), involved state inmates who were prohib-
ited from entering marriages without the permission of the
superintendent of the prison, permission that could not be
granted absent compelling reasons, id., at 82. In none of
those cases were individuals denied solely governmental
——————
slavery in the colony. Id., at 19–20. Virginia’s antimiscegenation laws
likewise were passed in a 1691 resolution entitled “An act for suppress-
ing outlying Slaves.” Act of Apr. 1691, Ch. XVI, 3 Va. Stat. 86 (W.
Hening ed. 1823) (reprint 1969) (italics deleted). “It was not until the
Civil War threw the future of slavery into doubt that lawyers, legisla-
tors, and judges began to develop the elaborate justifications that
signified the emergence of miscegenation law and made restrictions on
interracial marriage the foundation of post-Civil War white suprem-
acy.” Pascoe, supra, at 27–28.
Laws defining marriage as between one man and one woman do not
share this sordid history. The traditional definition of marriage has
prevailed in every society that has recognized marriage throughout
history. Brief for Scholars of History and Related Disciplines as Amici
Curiae 1. It arose not out of a desire to shore up an invidious institu-
tion like slavery, but out of a desire “to increase the likelihood that
children will be born and raised in stable and enduring family units by
both the mothers and the fathers who brought them into this world.”
Id., at 8. And it has existed in civilizations containing all manner of
views on homosexuality. See Brief for Ryan T. Anderson as Amicus
Curiae 11–12 (explaining that several famous ancient Greeks wrote
approvingly of the traditional definition of marriage, though same-sex
sexual relations were common in Greece at the time).
6 The prohibition extended so far as to forbid even religious ceremo-
nies, thus raising a serious question under the First Amendment’s Free
Exercise Clause, as at least one amicus brief at the time pointed out.
Brief for John J. Russell et al. as Amici Curiae in Loving v. Virginia,
O.T. 1966, No. 395, pp. 12–16.
Cite as: 576 U. S. ____ (2015) 13
THOMAS, J., dissenting
recognition and benefits associated with marriage.
In a concession to petitioners’ misconception of liberty,
the majority characterizes petitioners’ suit as a quest to
“find . . . 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 oppo-
site sex.” Ante, at 2. But “liberty” is not lost, nor can it be
found in the way petitioners seek. As a philosophical
matter, liberty is only freedom from governmental action,
not an entitlement to governmental benefits. And as a
constitutional matter, it is likely even narrower than that,
encompassing only freedom from physical restraint and
imprisonment. The majority’s “better informed under-
standing of how constitutional imperatives define . . .
liberty,” ante, at 19,—better informed, we must assume,
than that of the people who ratified the Fourteenth
Amendment—runs headlong into the reality that our
Constitution is a “collection of ‘Thou shalt nots,’ ” Reid v.
Covert, 354 U.S. 1, 9 (1957) (plurality opinion), not “Thou
shalt provides.”
III
The majority’s inversion of the original meaning of
liberty will likely cause collateral damage to other aspects
of our constitutional order that protect liberty.
A
The majority apparently disregards the political process
as a protection for liberty. Although men, in forming a
civil society, “give up all the power necessary to the ends
for which they unite into society, to the majority of the
community,” Locke §99, at 49, they reserve the authority
to exercise natural liberty within the bounds of laws estab-
lished by that society, id., §22, at 13; see also Hey §§52,
54, at 30–32. To protect that liberty from arbitrary inter-
ference, they establish a process by which that society can
14 OBERGEFELL v. HODGES
THOMAS, J., dissenting
adopt and enforce its laws. In our country, that process is
primarily representative government at the state level,
with the Federal Constitution serving as a backstop for
that process. As a general matter, when the States act
through their representative governments or by popular
vote, the liberty of their residents is fully vindicated. This
is no less true when some residents disagree with the
result; indeed, it seems difficult to imagine any law on
which all residents of a State would agree. See Locke §98,
at 49 (suggesting that society would cease to function if it
required unanimous consent to laws). What matters is
that the process established by those who created the
society has been honored.
That process has been honored here. The definition of
marriage has been the subject of heated debate in the
States. Legislatures have repeatedly taken up the matter
on behalf of the People, and 35 States have put the ques-
tion to the People themselves. In 32 of those 35 States,
the People have opted to retain the traditional definition
of marriage. Brief for Respondents in No. 14–571, pp. 1a–
7a. That petitioners disagree with the result of that pro-
cess does not make it any less legitimate. Their civil
liberty has been vindicated.
B
Aside from undermining the political processes that
protect our liberty, the majority’s decision threatens the
religious liberty our Nation has long sought to protect.
The history of religious liberty in our country is familiar:
Many of the earliest immigrants to America came seeking
freedom to practice their religion without restraint. See
McConnell, The Origins and Historical Understanding of
Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1422–
1425 (1990). When they arrived, they created their own
havens for religious practice. Ibid. Many of these havens
were initially homogenous communities with established
Cite as: 576 U. S. ____ (2015) 15
THOMAS, J., dissenting
religions. Ibid. By the 1780’s, however, “America was in
the wake of a great religious revival” marked by a move
toward free exercise of religion. Id., at 1437. Every State
save Connecticut adopted protections for religious freedom
in their State Constitutions by 1789, id., at 1455, and, of
course, the First Amendment enshrined protection for the
free exercise of religion in the U. S. Constitution. But that
protection was far from the last word on religious liberty
in this country, as the Federal Government and the States
have reaffirmed their commitment to religious liberty by
codifying protections for religious practice. See, e.g., Reli-
gious Freedom Restoration Act of 1993, 107 Stat. 1488, 42
U.S. C. §2000bb et seq.; Conn. Gen. Stat. §52–571b (2015).
Numerous amici—even some not supporting the
States—have cautioned the Court that its decision here
will “have unavoidable and wide-ranging implications
for religious liberty.” Brief for General Conference of
Seventh-Day Adventists et al. as Amici Curiae 5. In our
society, marriage is not simply a governmental institution;
it is a religious institution as well. Id., at 7. Today’s
decision might change the former, but it cannot change
the latter. It appears all but inevitable that the two will
come into conflict, particularly as individuals and churches
are confronted with demands to participate in and endorse
civil marriages between same-sex couples.
The majority appears unmoved by that inevitability. It
makes only a weak gesture toward religious liberty in a
single paragraph, ante, at 27. And even that gesture
indicates a misunderstanding of religious liberty in our
Nation’s tradition. Religious liberty is about more than
just the protection for “religious organizations and persons
. . . as they seek to teach the principles that are so ful-
filling and so central to their lives and faiths.” Ibid.
Religious liberty is about freedom of action in matters of
religion generally, and the scope of that liberty is directly
correlated to the civil restraints placed upon religious
16 OBERGEFELL v. HODGES
THOMAS, J., dissenting
practice.7
Although our Constitution provides some protection
against such governmental restrictions on religious prac-
tices, the People have long elected to afford broader pro-
tections than this Court’s constitutional precedents man-
date. Had the majority allowed the definition of marriage
to be left to the political process—as the Constitution
requires—the People could have considered the religious
liberty implications of deviating from the traditional defi-
nition as part of their deliberative process. Instead, the
majority’s decision short-circuits that process, with poten-
tially ruinous consequences for religious liberty.
IV
Perhaps recognizing that these cases do not actually
involve liberty as it has been understood, the majority
goes to great lengths to assert that its decision will ad-
vance the “dignity” of same-sex couples. Ante, at 3, 13, 26,
28.8 The flaw in that reasoning, of course, is that the
Constitution contains no “dignity” Clause, and even if it
did, the government would be incapable of bestowing
dignity.
Human dignity has long been understood in this country
to be innate. When the Framers proclaimed in the Decla-
ration of Independence that “all men are created equal”
——————
7 Concerns about threats to religious liberty in this context are not
unfounded. During the hey-day of antimiscegenation laws in this
country, for instance, Virginia imposed criminal penalties on ministers
who performed marriage in violation of those laws, though their reli-
gions would have permitted them to perform such ceremonies. Va.
Code Ann. §20–60 (1960).
8 The majority also suggests that marriage confers “nobility” on indi-
viduals. Ante, at 3. I am unsure what that means. People may choose
to marry or not to marry. The decision to do so does not make one
person more “noble” than another. And the suggestion that Americans
who choose not to marry are inferior to those who decide to enter such
relationships is specious.
Cite as: 576 U. S. ____ (2015) 17
THOMAS, J., dissenting
and “endowed by their Creator with certain unalienable
Rights,” they referred to a vision of mankind in which all
humans are created in the image of God and therefore of
inherent worth. That vision is the foundation upon which
this Nation was built.
The corollary of that principle is that human dignity
cannot be taken away by the government. Slaves did not
lose their dignity (any more than they lost their humanity)
because the government allowed them to be enslaved.
Those held in internment camps did not lose their dignity
because the government confined them. And those denied
governmental benefits certainly do not lose their dignity
because the government denies them those benefits. The
government cannot bestow dignity, and it cannot take it
away.
The majority’s musings are thus deeply misguided, but
at least those musings can have no effect on the dignity of
the persons the majority demeans. Its mischaracteriza-
tion of the arguments presented by the States and their
amici can have no effect on the dignity of those litigants.
Its rejection of laws preserving the traditional definition of
marriage can have no effect on the dignity of the people
who voted for them. Its invalidation of those laws can
have no effect on the dignity of the people who continue to
adhere to the traditional definition of marriage. And its
disdain for the understandings of liberty and dignity upon
which this Nation was founded can have no effect on the
dignity of Americans who continue to believe in them.
* * *
Our Constitution—like the Declaration of Independence
before it—was predicated on a simple truth: One’s liberty,
not to mention one’s dignity, was something to be shielded
from—not provided by—the State. Today’s decision casts
that truth aside. In its haste to reach a desired result, the
majority misapplies a clause focused on “due process” to
afford substantive rights, disregards the most plausible
18 OBERGEFELL v. HODGES
THOMAS, J., dissenting
understanding of the “liberty” protected by that clause,
and distorts the principles on which this Nation was
founded. Its decision will have inestimable consequences
for our Constitution and our society. I respectfully
dissent.
Cite as: 576 U. S. ____ (2015) 1
ALITO, 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]
JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE
THOMAS join, dissenting.
Until the federal courts intervened, the American people
were engaged in a debate about whether their States
should recognize same-sex marriage.1 The question in
——————
1I use the phrase “recognize marriage” as shorthand for issuing mar-
2 OBERGEFELL v. HODGES
ALITO, J., dissenting
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.
I
The Constitution says nothing about a right to same-sex
marriage, but the Court holds that the term “liberty” in
the Due Process Clause of the Fourteenth Amendment
encompasses this right. Our Nation was founded upon the
principle that every person has the unalienable right to
liberty, but liberty is a term of many meanings. For clas-
sical liberals, it may include economic rights now limited
by government regulation. For social democrats, it
may include the right to a variety of government benefits.
For today’s majority, it has a distinctively postmodern
meaning.
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 tradi-
tion.’ ” Washington v. Glucksberg, 521 U.S. 701, 720–721
(1997). And it is beyond dispute that the right to same-sex
marriage is not among those rights. See United States v.
Windsor, 570 U. S. ___, ___ (2013) (ALITO, J., dissenting)
(slip op., at 7). Indeed:
“In this country, no State permitted same-sex mar-
riage until the Massachusetts Supreme Judicial Court
held in 2003 that limiting marriage to opposite-sex
couples violated the State Constitution. See
Goodridge v. Department of Public Health, 440 Mass.
——————
riage licenses and conferring those special benefits and obligations
provided under state law for married persons.
Cite as: 576 U. S. ____ (2015) 3
ALITO, J., dissenting
309, 798 N.E.2d 941. Nor is the right to same-sex
marriage deeply rooted in the traditions of other na-
tions. No country allowed same-sex couples to marry
until the Netherlands did so in 2000.
“What [those arguing in favor of a constitutional
right to same sex marriage] seek, therefore, is not the
protection of a deeply rooted right but the recognition
of a very new right, and they seek this innovation not
from a legislative body elected by the people, but from
unelected judges. Faced with such a request, judges
have cause for both caution and humility.” Id., at ___
(slip op., at 7–8) (footnote omitted).
For today’s majority, it does not matter that the right to
same-sex marriage lacks deep roots or even that it is
contrary to long-established tradition. The Justices in the
majority claim the authority to confer constitutional pro-
tection upon that right simply because they believe that it
is fundamental.
II
Attempting to circumvent the problem presented by the
newness of the right found in these cases, the majority
claims that the issue is the right to equal treatment.
Noting that marriage is a fundamental right, the majority
argues that a State has no valid reason for denying that
right to same-sex couples. This reasoning is dependent
upon a particular understanding of the purpose of civil
marriage. Although the Court expresses the point in
loftier terms, its argument is that the fundamental pur-
pose of marriage is to promote the well-being of those who
choose to marry. Marriage provides emotional fulfillment
and the promise of support in times of need. And by bene-
fiting persons who choose to wed, marriage indirectly
benefits society because persons who live in stable, ful-
filling, and supportive relationships make better citizens.
It is for these reasons, the argument goes, that States
4 OBERGEFELL v. HODGES
ALITO, J., dissenting
encourage and formalize marriage, confer special benefits
on married persons, and also impose some special obliga-
tions. This understanding of the States’ reasons for recog-
nizing marriage enables the majority to argue that same-
sex marriage serves the States’ objectives in the same way
as opposite-sex marriage.
This understanding of marriage, which focuses almost
entirely on the happiness of persons who choose to marry,
is shared by many people today, but it is not the traditional
one. For millennia, marriage was inextricably linked to
the one thing that only an opposite-sex couple can do:
procreate.
Adherents to different schools of philosophy use differ-
ent terms to explain why society should formalize mar-
riage and attach special benefits and obligations to per-
sons who marry. Here, the States defending their
adherence to the traditional understanding of marriage
have explained their position using the pragmatic vocabu-
lary that characterizes most American political discourse.
Their basic argument is that States formalize and promote
marriage, unlike other fulfilling human relationships, in
order to encourage potentially procreative conduct to take
place within a lasting unit that has long been thought to
provide the best atmosphere for raising children. They
thus argue that there are reasonable secular grounds for
restricting marriage to opposite-sex couples.
If this traditional understanding of the purpose of mar-
riage does not ring true to all ears today, that is probably
because the tie between marriage and procreation has
frayed. Today, for instance, more than 40% of all children
in this country are born to unmarried women.2 This de-
——————
2 See, e.g., Dept. of Health and Human Services, Centers for Disease
Control and Prevention, National Center for Health Statistics, D.
Martin, B. Hamilton, M. Osterman, S. Curtin, & T. Matthews, Births:
Final Data for 2013, 64 National Vital Statistics Reports, No. 1, p. 2
(Jan. 15, 2015), online at http://www.cdc.gov/nchs/data/nvsr/nvsr64/
Cite as: 576 U. S. ____ (2015) 5
ALITO, J., dissenting
velopment undoubtedly is both a cause and a result of
changes in our society’s understanding of marriage.
While, for many, the attributes of marriage in 21st-
century America have changed, those States that do not
want to recognize same-sex marriage have not yet given
up on the traditional understanding. They worry that by
officially abandoning the older understanding, they may
contribute to marriage’s further decay. It is far beyond
the outer reaches of this Court’s authority to say that a
State may not adhere to the understanding of marriage
that has long prevailed, not just in this country and others
with similar cultural roots, but also in a great variety of
countries and cultures all around the globe.
As I wrote in Windsor:
“The family is an ancient and universal human in-
stitution. Family structure reflects the characteristics
of a civilization, and changes in family structure and
in the popular understanding of marriage and the
family can have profound effects. Past changes in the
understanding of marriage—for example, the gradual
ascendance of the idea that romantic love is a prereq-
uisite to marriage—have had far-reaching conse-
quences. But the process by which such consequences
come about is complex, involving the interaction of
numerous factors, and tends to occur over an extended
period of time.
“We can expect something similar to take place if
same-sex marriage becomes widely accepted. The
long-term consequences of this change are not now
known and are unlikely to be ascertainable for some
——————
nvsr64_01.pdf (all Internet materials as visited June 24, 2015, and
available in Clerk of Court’s case file); cf. Dept. of Health and Human
Services, Centers for Disease Control and Prevention, National Center
for Health Statistics (NCHS), S. Ventura, Changing Patterns of Non-
martial Childbearing in the United States, NCHS Data Brief, No. 18
(May 2009), online at http://www.cdc.gov/ nchs/ data/databrief/db18.pdf.
6 OBERGEFELL v. HODGES
ALITO, J., dissenting
time to come. There are those who think that allow-
ing same-sex marriage will seriously undermine the
institution of marriage. Others think that recogni-
tion of same-sex marriage will fortify a now-shaky
institution.
“At present, no one—including social scientists, phi-
losophers, and historians—can predict with any cer-
tainty what the long-term ramifications of widespread
acceptance of same-sex marriage will be. And judges
are certainly not equipped to make such an assess-
ment. The Members of this Court have the authority
and the responsibility to interpret and apply the Con-
stitution. Thus, if the Constitution contained a provi-
sion guaranteeing the right to marry a person of the
same sex, it would be our duty to enforce that right.
But the Constitution simply does not speak to the is-
sue of same-sex marriage. In our system of govern-
ment, ultimate sovereignty rests with the people, and
the people have the right to control their own destiny.
Any change on a question so fundamental should be
made by the people through their elected officials.”
570 U. S., at ___ (dissenting opinion) (slip op., at 8–10)
(citations and footnotes omitted).
III
Today’s decision usurps the constitutional right of the
people to decide whether to keep or alter the traditional
understanding of marriage. The decision will also have
other important consequences.
It will be used to vilify Americans who are unwilling to
assent to the new orthodoxy. In the course of its opinion,
the majority compares traditional marriage laws to laws
that denied equal treatment for African-Americans and
women. E.g., ante, at 11–13. The implications of this
analogy will be exploited by those who are determined to
stamp out every vestige of dissent.
Cite as: 576 U. S. ____ (2015) 7
ALITO, J., dissenting
Perhaps recognizing how its reasoning may be used, the
majority attempts, toward the end of its opinion, to reas-
sure those who oppose same-sex marriage that their rights
of conscience will be protected. Ante, at 26–27. We will
soon see whether this proves to be true. I assume that
those who cling to old beliefs will be able to whisper their
thoughts in the recesses of their homes, but if they repeat
those views in public, they will risk being labeled as bigots
and treated as such by governments, employers, and
schools.
The system of federalism established by our Constitu-
tion provides a way for people with different beliefs to live
together in a single nation. If the issue of same-sex mar-
riage had been left to the people of the States, it is likely
that some States would recognize same-sex marriage and
others would not. It is also possible that some States
would tie recognition to protection for conscience rights.
The majority today makes that impossible. By imposing
its own views on the entire country, the majority facili-
tates the marginalization of the many Americans who
have traditional ideas. Recalling the harsh treatment of
gays and lesbians in the past, some may think that turn-
about is fair play. But if that sentiment prevails, the Na-
tion will experience bitter and lasting wounds.
Today’s decision will also have a fundamental effect on
this Court and its ability to uphold the rule of law. If a
bare majority of Justices can invent a new right and im-
pose that right on the rest of the country, the only real
limit on what future majorities will be able to do is their
own sense of what those with political power and cultural
influence are willing to tolerate. Even enthusiastic sup-
porters of same-sex marriage should worry about the scope
of the power that today’s majority claims.
Today’s decision shows that decades of attempts to
restrain this Court’s abuse of its authority have failed. A
lesson that some will take from today’s decision is that
8 OBERGEFELL v. HODGES
ALITO, J., dissenting
preaching about the proper method of interpreting the
Constitution or the virtues of judicial self-restraint and
humility cannot compete with the temptation to achieve
what is viewed as a noble end by any practicable means. I
do not doubt that my colleagues in the majority sincerely
see in the Constitution a vision of liberty that happens to
coincide with their own. But this sincerity is cause for
concern, not comfort. What it evidences is the deep and
perhaps irremediable corruption of our legal culture’s
conception of constitutional interpretation.
Most Americans—understandably—will cheer or lament
today’s decision because of their views on the issue of
same-sex marriage. But all Americans, whatever their
thinking on that issue, should worry about what the ma-
jority’s claim of power portends.