Excerpts from the marriage ruling and dissents

Here are some key excerpts from Justice Anthony Kennedy’s ruling legalizing gay marriage and the four dissents from Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. The ruling and the dissents address the effect the ruling will have on religious individuals and groups who oppose same-sex marriage. (See also Marvin Olasky’s “Warning from the Supreme Court.”)

Kennedy: Marriage is a fundamental right

“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 14th Amendment couples of the same-sex may not be deprived of that right and that liberty.

“Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.

“The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time. … These new insights have strengthened, not weakened, the institution of marriage.

“The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. … 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.

“Without the recognition, stability, and predictability marriage offers, [gay couples’] children suffer the stigma of knowing their families are somehow lesser.

“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 enacted 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.

“The Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.

“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, 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 searching debate.”

Roberts: No comfort for people of faith

“[T]his 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. … Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not.

“The 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.

“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 marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage 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,’ why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry?

“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.’ “As petitioners put it, ‘times can blind.’ But to blind yourself to history is both prideful and unwise. ‘The past is never dead. It’s not even past.’ W. Faulkner, Requiem for a Nun.

“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 thoughtful District Court decisions,’ ‘countless studies, papers, books, and other popular and scholarly writings,’ and ‘more than 100’ amicus briefs in these cases alone. 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.’ The answer is surely there in one of those amicus briefs or studies.

“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. … The majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage. 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 religious 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 acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. 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.”

Thomas: Conflict is inevitable

“In our society, marriage is not simply a governmental institution; it is a religious institution as well. 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. 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 fulfilling and so central to their lives and faiths.’ 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 practice.”

Scalia: American democracy threatened

“I write separately to call attention to this court’s threat to American democracy. The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. … 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.

“[A]n 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 14th Amendment protects those rights that the judiciary, in its ‘reasoned judgment,’ thinks the 14th Amendment ought to protect.

“The opinion is couched in a style that is as pretentious as its content is egotistic.”

Alito: Ammunition for a new orthodoxy

“[The ruling] 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. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

“Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. 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.

“By imposing its own views on the entire country, the majority facilitates 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 turnabout is fair play. But if that sentiment prevails, the nation 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 impose 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 supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.”