Archivi del mese: giugno 2015

don Antonio Cecconi su matrimonio e famiglia, da “Settimana”

Sul tema coppia-matrimonio

SIAMO NOI PRETI GLI INTERLOCUTORI PIÙ ADATTI?

Si parla molto, in ambienti cattolici e non solo, di che cosa è matrimonio e famiglia e di cosa non lo è e di come la legislazione civile debba porsi nei confronti delle unioni civili, addirittura equiparandole al matrimonio tra un uomo e una donna… Vorrei proporre alcune considerazioni non solo come reazione a quel che circola in giro (compresa una nuova edizione del Family Day o qualcosa di simile), ma anche per un pensiero che mi è venuto celebrando la liturgia della Santissima Trinità, che è “la famiglia di Dio” (lì dove i TRE vivono di reciproco, eterno e totale amore, tanto meraviglioso e fecondo che non lo tengono per sé ma lo fanno traboccare ad extra: sul mondo, sulla storia, sulla chiesa, su ciascuno di noi…). Bisognerebbe partire soprattutto da qui per chiedere luce su ciò che pensiamo, pratichiamo (e noi preti predichiamo) in materia di famiglia/famiglie, e quindi anche per ciò che le famiglie “doc” sono chiamate a dare in una società che ospita, in materia di matrimonio e famiglia, idee e prassi le più diverse.

Parto da una frase che ho trovato in una delle tante riflessioni cui ha dato luogo il sinodo straordinario indetto da papa Francesco: “la famiglia non è un fortino che resiste, ma una buona novella che contagia”.

Il Segretario di stato vaticano ha dichiarato che la vittoria del sì nel referendum in favore del matrimonio degli omosessuali in Irlanda è stata una sconfitta per l’umanità. Colgo la drammaticità dell’affermazione e non la discuto, ma la colloco all’interno di un atteggiamento ecclesiastico che rischia di insistere più sulla denuncia del male che sulla proposta del bene, almeno di quel po’ di bene che deve esser possibile in ogni esperienza umana. Ai tempi in cui si affiggevano alle porte delle chiese le classifiche dei film (per adulti, adulti con riserva, sconsigliato, escluso… e andarli a vedere era peccato), ricordo l’affermazione di un prete illuminato: i cattolici, anziché maneggiare le forbici della censura, perché non usano la macchina da presa per fare dei film belli, e invogliare la gente ad andare al cinema per quelli!

Su matrimonio e famiglia – in proporzioni e con conseguenze molto più vaste – forse accade qualcosa di simile. La difesa del matrimonio come dovrebbe essere (solo per i credenti? per tutti i cittadini di tutte le fedi e convinzioni, compresi quelli che fino a pochi anni fa dichiaravamo concubini?), l’accusa a chi vuol fare (o ha già fatto) qualcosa di diverso e però lo vuol chiamare con lo stesso nome e l’opposizione a disposizioni più “permissive” in sede civile diventano altrettante occasioni di accuse alla chiesa e soprattutto non favoriscono nella comunità cristiana quell’atteggiamento di ascolto, dialogo e misericordia che dovrebbe sempre accompagnare la relazione con ogni persona e gruppo umano, anche i più distanti da noi. E frenano quell’annuncio della “gioia del Vangelo” che dovrebbe caratterizzare una chiesa in uscita verso tutti i lontani, i non credenti, gli erranti, le periferie non solo geografiche…

Perché chi sono i primi evangelizzatori di chi vive realtà “altre” rispetto alla famiglia fondata sul matrimonio-sacramento se non quei cristiani che nella famiglia ci credono davvero, che si sono sposati non tanto in chiesa quanto in Cristo, che cercano ogni giorno di rispondere al dono sacramentale della Grazia e viverlo in maniera creativa, liberante e diffusiva di bene? E lo fanno non con proclami né tanto meno accuse, ma comunicando almeno un po’ della ricchezza e bellezza che sperimentano, praticando l’accoglienza e il rispetto non in astratto, ma sforzandosi di ricercare – in chi sceglie o semplicemente si trova a vivere legami d’amore non riconducibili a una famiglia “regolare” e/o a un matrimonio “canonico” – un desiderio e una nostalgia di completezza e pienezza che sono propri del sacramento del matrimonio.

Credo che gli sposi cristiani – e in molti casi ciò già accade – non siano chiamati a fare i custodi gelosi di una cosa di cui hanno il monopolio, diffidando chiunque dalle imitazioni, ma a vivere nella logica della città sul monte, della luce da far risplendere di fronte al mondo (Mt 5,14-16) e quindi con una capacità attrazione e contagio nel bene, una ricchezza umile mutuabile e imitabile, uno stile di ospitalità e prossimità verso chi vive – in modo “imperfetto” e in taluni casi “non sanabile” – altri modi di essere coppia e famiglia. Credo anche che ogni desiderio di unirsi, di costruire qualcosa a partire da un amore che lega e che in qualche misura percorre la via del dono di sé, della fedeltà, del minor spazio dato all’io in favore del noi sia un pezzetto di buona notizia per la società. E che vivere l’esperienza di coppia in forza del sacramento del matrimonio è di per sé una chiamata a evangelizzare le “altre coppie”, gli “altri amori”. Non in termini di giudizio di lecito/illecito, di permesso/proibito, di naturale/contro natura, ma accostando con rispetto e amore tutto ciò che è vissuto in umanità, coscienza e talvolta sofferenza.

E aggiungo un’altra convinzione che sto maturando: su questi aspetti, come su altri, noi preti (a cui mi permetto di aggiungere anche i vescovi) dovremmo tacere di più e dare la parola ai laici credenti, prima di tutto gli sposi. Il matrimonio, io prete, lo vivo da “credente non praticante”: compete prima di tutto a chi ha la grazia sacramentale (ne è addirittura ministro!) e di conseguenza la grazia di stato evangelizzare tutto ciò che aspira ad essere famiglia, ad essere coppia e lo sarà soltanto in modo imperfetto, per carenze e limiti in parte oggettivi e in parte soggettivi. Chi giudica è il Signore, a noi tocca soprattutto accogliere, sperare, amare.

 

don Antonio Cecconi – giugno 2015

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Caso De Luca: scelte obbligate- mio pezzo sul Quotidiano Nazionale di oggi

Scelte obbligate

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Il senatore Dalla Zuanna sulla riforma della scuola

Per comprendere la necessità della legge che stiamo per discutere, bisogna partire dai problemi della scuola italiana, sintetizzabili in due parole: molta diseguaglianza e trasmissione di competenze non adeguate alle necessità dei giovani.

 

La scuola italiana finora ha fallito nella missione di realizzare il terzo comma dell’articolo 34 della Costituzione: “I capaci e meritevoli, anche se privi di mezzi, hanno diritto di raggiungere i gradi più alti degli studi”. In Italia, fra i nati negli anni ’70, per chi aveva entrambi i genitori laureati, la probabilità di laurearsi è stata sei volte superiore rispetto a chi aveva entrambi i genitori con la sola licenza elementare. Gramsci, amaramente, diceva che l’unico modo per superare le differenze di classe nella scuola era mettere tutti assieme i bambini in collegio quando avevano 10 anni …

 

Amplissime sono poi anche altre diseguaglianze: come dimostrano i contestati dati INVALSI, i risultati differiscono molto fra giovani figli di italiani e di stranieri (anche se nati in Italia), con gli stranieri in posizione di stabile retroguardia. Si osservano inoltre grandi differenze fra scuole dello stesso ordine situate nella medesima città. Enormi sono infine le differenze territoriali, non solo fra Nord e Sud, ma anche fra provincie e città della stessa regione.

 

Quanto alle trasmissione di competenze, colpisce innanzitutto il grande mismatch fra scuola e mondo del lavoro. Troppi studenti, spesso male orientati, intraprendono carriere scolastiche, anche impegnative, che danno loro poche carte da giocare nel mondo del lavoro. Nello stesso tempo, molti imprenditori lamentano di non trovare nei giovani aspiranti lavoratori le competenze necessarie. Inoltre, nelle indagini comparative internazionali sui livelli di apprendimento, gli studenti italiani si piazzano mediamente male, anche se recentemente si intravvedono segnali di miglioramento.

 

Questi gravi problemi impediscono alla scuola italiana di essere il motore della modernità e un ascensore sociale. Essi mettono in ombra alcune caratteristiche positive, anche queste messe ben in evidenza dai dati, ossia la forte capacità di integrazione – dovuta anche all’interclassismo ancora prevalente, specialmente nella scuola dell’infanzia, primaria e secondaria inferiore – e il grande impegno messo in atto da tanti docenti con la collaborazione di tante famiglie.

 

Questo disegno di legge interviene solo parzialmente sui contenuti degli insegnamenti, ma modifica profondamente l’organizzazione della scuola italiana, proprio con il duplice obiettivo di contrastare le diseguaglianze e di dare agli studenti le giuste competenze.

 

In questa legge le diseguaglianze vengono combattute dando compimento all’autonomia. Lo si fa completando il quadro già prefigurato dalla legge Berlinguer del 1996, delineando un processo di cinque fasi: POF di istituto à organico dell’autonomia à scelta e conferma del corpo docente à premio al merito ai docenti e alle scuole più problematiche à valutazione dei dirigenti sugli obiettivi raggiunti. È un disegno organico, che certamente poteva essere meglio affinato, ma che ha il pregio di segnare un percorso chiaro: dettando regole, mettendo risorse, definendo competenze.

 

Si configura inoltre un percorso trasparente, con pubblicazione sul sito della scuola e sul portale del ministero di tutti gli atti prodotti. Per inciso, questa pubblicizzazione andrà curata con attenzione, per permettere a tutti gli stakeholder anche la comparazione fra diversi istituti, come già accade in altri contesti, ad esempio nel Regno Unito.

 

Nei prossimi anni tutto il processo potrà e dovrà essere affinato, e l’attuale testo prevede già la revisione, fra tre anni, del meccanismo di valutazione del merito dei docenti.

 

Questa processo, molto innovativo per la scuola italiana, permetterà di adattare ogni singola scuola alle esigenze formative del territorio dove opera: solo per fare un esempio, permetterà di inserire nel corpo docente professori specializzati nell’insegnamento agli stranieri, se nel territorio c’è una forte prevalenza di giovani appena giunti dall’estero.

 

Il punto più controverso è la possibilità, per il dirigente, di non confermare il docente dopo un triennio, anche se l’eventuale non conferma è condizionata all’incoerenza rispetto al POF. Si è gridato, a tale proposito, all’attentato verso l’autonomia di insegnamento. In realtà, nella scuola di oggi non c’è reale autonomia, perché la vera autonomia non è libertà illimitata, ma anche assunzione diretta di responsabilità: in altre parole, se fosse veramente autonomo ogni docente dovrebbe rispondere direttamente del suo operato, con conseguenze per lui positive in caso di successo, negative in caso di insuccesso. Da preside di facoltà, per me è stato frustrante non poter intervenire, anche in presenza di evidente  inadeguatezza di qualche docente a ricoprire un incarico di insegnamento. Potevo solo raccogliere lamentele e fare ramanzine: i docenti, bravi o meno bravi, continuavano a restare al loro posto, con lo stesso stipendio e continuando a fare le stesse cose. Questa legge, subordinando la conferma alla coerenza con il POF, introduce una forte spinta all’impegno personale, pur non introducendo la possibilità di licenziamento.

 

Peraltro, al dirigente non converrà scegliere docenti “amici” a discapito di docenti più adatti alla realizzazione del POF, perché le sue scelte saranno sotto gli occhi di tutti, dovranno essere giustificate da atti pubblici, e anche lui verrà valutato dagli ispettori ministeriali sulla realizzazione del POF (e non solo), secondo il nuovo, molto dettagliato, comma 92.

 

Un breve cenno a quanto questa legge fa per migliorare la trasmissione di competenze, diminuendo il gap fra scuola e mondo del lavoro, fra scuola e territorio. Prevede stage per tutti gli studenti delle secondarie superiori, 400 ore negli istituti tecnici e professionali e 200 ore nei licei, finanziando in modo adeguato l’organizzazione di tali attività; prevede e finanzia l’apertura pomeridiana delle scuole al territorio; prevede, sempre con adeguato finanziamento, i laboratori territoriali per l’occupabilità, da attivare assieme ai vari enti territoriali; prevede infine che il POF venga costruito “promuovendo i necessari rapporti con gli enti locali e con le diverse realtà istituzionali, culturali, sociali ed economiche operanti nel territorio” (comma 5).

 

Girando il Veneto e l’Italia, da professore e da senatore, ho avuto l’occasione di vedere scuole fantastiche, piene di bravi docenti e di dirigenti fantasiosi e impegnati. Ho conosciuto però anche scuole grigie, docenti che non riescono ad appassionare gli studenti, scuole difficili e prive di risorse per affrontare i loro specifici, grandi problemi. I meccanismi organizzativi previsti da questa legge introdurranno un nuovo dinamismo, compiendo un nuovo tratto di percorso verso una vera e concreta autonomia.

 

È una legge che dovrà venire attentamente monitorata, osservando come i singoli istituti faranno uso della loro autonomia, specialmente nel delicato processo di valutazione. Perché le scuole grigie debbono riempirsi di colori, diventando il luogo dove i talenti di ogni giovane – cinque o uno che siano – vengono fatti veramente fruttare.

 

 

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La sentenza della Corte Suprema integrale

1
(Slip Opinion) OCTOBER TERM, 2014
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing 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 beenprepared 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 unionbetween one man and one woman. The petitioners, 14 same-sex couples and two men whose same-sex partners are deceased, filed suits in Federal District Courts in their home States, claiming that respondent state officials violate the Fourteenth Amendment by denying them the right to marry or to have marriages lawfully performedin 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 marriage between two people of the same sex and to recognize a marriagebetween two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Pp. 3–28.
(a)
Before turning to the governing principles and precedents, it isappropriate 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 ofthe opposite sex marks the beginning of these cases. To the respondents, it would demean a timeless institution if marriage were extended to same-sex couples. But the petitioners, far from seeking to devalue marriage, seek it for themselves because of their respect—andneed—for its privileges and responsibilities, as illustrated by the pe——————
*Together with No. 14–562, Tanco et al. v. Haslam, Governor of Tennessee, 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 abandonment 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 anillness. Later in the century, cultural and political developments allowed same-sex couples to lead more open and public lives. Extensive public and private dialogue followed, along with shifts in public attitudes. Questions about the legal treatment of gays and lesbians soonreached the courts, where they could be discussed in the formal discourse of the law. In 2003, this Court overruled its 1986 decision in Bowers v. Hardwick, 478 U. S. 186, which upheld a Georgia law thatcriminalized 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 federalcourts and state supreme courts have added to the dialogue. Pp. 6–
10.
(b)
The Fourteenth Amendment requires a State to license a marriage 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 choices 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 interests of the person so fundamental that the State must accord themits respect. History and tradition guide and discipline the inquirybut do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal 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 theright to marry. To be sure, these cases presumed a relationship inCite
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 federal question. But other, more instructive precedents have expressed broader principles. See, e.g., Lawrence, supra, at 574. In assessingwhether 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 protected. See, e.g., Eisenstadt, supra, at 453–454. This analysis compels the conclusion that same-sex couples may exercise the right to marry. Pp. 10–12.
(2)
Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply withequal force to same-sex couples. The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage 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 intimatethat 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 tomarry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. The intimate association protected by this right was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception, 381 U. S., at 485, and was acknowledged in Turner, supra, at 95. Same-sex couples have the same rightas opposite-sex couples to enjoy intimate association, a right extending beyond mere freedom from laws making same-sex intimacy acriminal offense. See Lawrence, supra, at 567.
A third basis for protecting the right to marry is that it safeguardschildren 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 predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significantmaterial costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life. The marriage laws at issuethus harm and humiliate the children of same-sex couples. See Windsor, supra, at ___. This does not mean that the right to marry isless meaningful for those who do not or cannot have children. Precedent 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 between same- and opposite-sex couples with respect to this principle,yet same-sex couples are denied the constellation of benefits that theStates have linked to marriage and are consigned to an instabilitymany opposite-sex couples would find intolerable. It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, 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 meaning of the fundamental right to marry is now manifest. Pp. 12–18.
(3)
The right of same-sex couples to marry is also derived fromthe 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 coextensive, yet each may be instructive as to the meaning and reach of the other. This dynamic is reflected in Loving, where the Court invoked both the Equal Protection Clause and the Due Process Clause;and in Zablocki v. Redhail, 434 U. S. 374, where the Court invalidated a law barring fathers delinquent on child-support payments frommarrying. Indeed, recognizing that new insights and societal understandings can reveal unjustified inequality within fundamental institutions that once passed unnoticed and unchallenged, this Court hasinvoked 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 constitutional safeguards in the context of the legal treatment of gaysand lesbians. See Lawrence, 539 U. S., at 575. This dynamic also applies to same-sex marriage. The challenged laws burden the liberty of same-sex couples, and they abridge central precepts of equality.The marriage laws at issue are in essence unequal: Same-sex couplesare 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 continuing harm, serving to disrespect and subordinate gays and lesbians. Pp. 18–22.
(4)
The right to marry is a fundamental right inherent in theliberty of the person, and under the Due Process and Equal ProtecCite
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 cases are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. Pp. 22–23.
(5)
There may be an initial inclination to await further legislation, litigation, and debate, but referenda, legislative debates, andgrassroots campaigns; studies and other writings; and extensive litigation in state and federal courts have led to an enhanced understanding of the issue. While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right. Bowers, in effect, upheld state action that denied gays and lesbians a fundamental right. Though it was eventually repudiated, 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 Amendment. The petitioners’ stories show the urgency of the issue they present to the Court, which has a duty to address these claims andanswer these questions. Respondents’ argument that allowing same-sex couples to wed will harm marriage as an institution rests on acounterintuitive view of opposite-sex couples’ decisions about marriage and parenthood. Finally, the First Amendment ensures thatreligions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfillingand 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 couplesmay 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-sexmarriage performed in another State on the ground of its same-sexcharacter. 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 thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in orderthat 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 thatliberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms andconditions 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 between 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 whosesame-sex partners are deceased. The respondents arestate officials responsible for enforcing the laws in question. The petitioners claim the respondents violate theFourteenth Amendment by denying them the right to marry or to have their marriages, lawfully performed inanother 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 judgments 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 Kentucky, is whether the Fourteenth Amendment requires aState to license a marriage between two people of the same sex. The second, presented by the cases from Ohio,
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Tennessee, and, again, Kentucky, is whether the Fourteenth Amendment requires a State to recognize a same-sex marriage licensed and performed in a State which doesgrant that right.
II Before addressing the principles and precedents thatgovern 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 importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to allpersons, without regard to their station in life. Marriageis sacred to those who live by their religions and offersunique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greaterthan just the two persons. Rising from the most basic human needs, marriage is essential to our most profoundhopes and aspirations. The centrality of marriage to the human conditionmakes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, 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, “Thefirst bond of society is marriage; next, children; and thenthe family.” See De Officiis 57 (W. Miller transl. 1913).There are untold references to the beauty of marriage inreligious and philosophical texts spanning time, cultures,
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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 unionbetween two persons of the opposite sex.
That history is the beginning of these cases. The respondents 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 throughout the world.
The petitioners acknowledge this history but contendthat these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, thepetitioners’ 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 thatunderlies the petitioners’ contentions. This, they say, istheir 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 marriage 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 lasting, 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 tocommit to one another, resolving to marry before Arthurdied. To fulfill their mutual promise, they traveled from
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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 thetarmac in Baltimore. Three months later, Arthur died. Ohio law does not permit Obergefell to be listed as thesurviving spouse on Arthur’s death certificate. By statute, they must remain strangers even in death, a state-imposed separation Obergefell deems “hurtful for the restof 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 thecase from Michigan. They celebrated a commitment ceremony to honor their permanent relation in 2007. Theyboth work as nurses, DeBoer in a neonatal unit and Rowse in an emergency unit. In 2009, DeBoer and Rowse fostered 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 biologicalmother, 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 onewoman as his or her legal parent. If an emergency were toarise, schools and hospitals may treat the three children as if they had only one parent. And, were tragedy to befalleither DeBoer or Rowse, the other would have no legalrights over the children she had not been permitted toadopt. This couple seeks relief from the continuing uncertainty their unmarried status creates in their lives.
Army Reserve Sergeant First Class Ijpe DeKoe and hispartner Thomas Kostura, co-plaintiffs in the Tennessee case, fell in love. In 2011, DeKoe received orders to deployto 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
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settled in Tennessee, where DeKoe works full-time for the Army Reserve. Their lawful marriage is stripped fromthem whenever they reside in Tennessee, returning and disappearing as they travel across state lines. DeKoe, who served this Nation to preserve the freedom the Constitution 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 ratherto live their lives, or honor their spouses’ memory, joinedby 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 continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time. For example, marriage was once viewed as an arrangement 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, Commentaries on the Laws of England 430 (1765). As women gained legal, political, and property rights, and as societybegan to understand that women have their own equaldignity, 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 overthe past centuries were not mere superficial changes.
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Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential. See generally N. Cott, Public Vows; S. Coontz, Marriage; H. Hartog, Man & Wife in America: A History (2000).
These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas orprotests 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, abelief 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 argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions. Same-sex intimacy remained a crime in many States. Gays and lesbians were prohibited from mostgovernment employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate. See Brief for Organization of American Historians as Amicus Curiae 5–28.
For much of the 20th century, moreover, homosexuality was treated as an illness. When the American PsychiatricAssociation published the first Diagnostic and Statistical Manual of Mental Disorders in 1952, homosexuality was classified as a mental disorder, a position adhered to until1973. See Position Statement on Homosexuality and Civil
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Rights, 1973, in 131 Am. J. Psychiatry 497 (1974). Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable. See Brief for American Psychological Association et al. as Amici Curiae 7–17.
In the late 20th century, following substantial culturaland political developments, same-sex couples began tolead more open and public lives and to establish families. This development was followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greatertolerance. As a result, questions about the rights of gaysand 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 aGeorgia 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’sConstitution that sought to foreclose any branch or political subdivision of the State from protecting persons against discrimination based on sexual orientation. Then, in 2003, the Court overruled Bowers, holding that lawsmaking 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 Constitution. 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 itsimplications and reaffirmed in their laws that marriage is
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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 Supreme 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 theircommunity.” Id., at ___ (slip op., at 14).
Numerous cases about same-sex marriage have reachedthe United States Courts of Appeals in recent years. In accordance with the judicial duty to base their decisions onprincipled reasons and neutral discussions, without scornful or disparaging commentary, courts have written a substantial body of law considering all sides of these issues. That case law helps to explain and formulate theunderlying 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 Appealshave held that excluding same-sex couples from marriage violates the Constitution. There also have been many
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thoughtful District Court decisions addressing same-sexmarriage—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 thisongoing dialogue in decisions interpreting their own StateConstitutions. These state and federal judicial opinions are cited in Appendix A, infra.
After years of litigation, legislation, referenda, and thediscussions that attended these public acts, the States arenow divided on the issue of same-sex marriage. See Office of the Atty. Gen. of Maryland, The State of MarriageEquality 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 includemost 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 choicescentral 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 theConstitution. That responsibility, however, “has not been reduced to any formula.” Poe v. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). Rather, it requirescourts to exercise reasoned judgment in identifying interests of the person so fundamental that the State mustaccord 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 principles rather than specific requirements. History and tradiCite
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tion guide and discipline this inquiry but do not set itsouter boundaries. See Lawrence, supra, at 572. That method respects our history and learns from it withoutallowing 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 dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as welearn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
Applying these established tenets, the Court has longheld the right to marry is protected by the Constitution. In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated 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 burdened by a law prohibiting fathers who were behind onchild 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. Oklahoma 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,
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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 inhistory, tradition, and other constitutional liberties inherent 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 protected. See, e.g., Eisenstadt, supra, at 453–454; Poe, supra, at 542–553 (Harlan, J., dissenting).
This analysis compels the conclusion that same-sexcouples may exercise the right to marry. The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitutionapply 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 inherentin the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due ProcessClause. See 388 U. S., at 12; see also Zablocki, supra, at 384 (observing Loving held “the right to marry is of fundamental importance for all individuals”). Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574. Indeed, the Court has noted it would
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be contradictory “to recognize a right of privacy with respect to other matters of family life and not with respect tothe decision to enter the relationship that is the foundation 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 hasexplained, because “it fulfils yearnings for security, safehaven, and connection that express our common human- ity, civil marriage is an esteemed institution, and thedecision whether and whom to marry is among life’s momentous acts of self-definition.” Goodridge, 440 Mass., at 322, 798 N. E. 2d, at 955.
The nature of marriage is that, through its enduringbond, two persons together can find other freedoms, suchas expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. See Windsor, 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 profound 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 atwo-person union unlike any other in its importance to thecommitted 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 being sacred. It is an association that promotes a way oflife, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social
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projects. Yet it is an association for as noble a purposeas any involved in our prior decisions. ” Id., at 486.
And in Turner, the Court again acknowledged the intimate association protected by this right, holding prisonerscould not be denied the right to marry because their committed relationships satisfied the basic reasons why marriage 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 theuniversal fear that a lonely person might call out only tofind no one there. It offers the hope of companionship andunderstanding 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 havethe 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 conduct with another person, the conduct can be but oneelement 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 itsafeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. 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 andbring up children’ is a central part of the liberty protectedby the Due Process Clause.” Zablocki, 434 U. S., at 384
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(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 structure to their parents’ relationship, marriage allows children “to understand the integrity and closeness of theirown 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 provideloving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children 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 powerfulconfirmation from the law itself that gays and lesbians can create loving, supportive families.
Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing theirfamilies are somehow lesser. They also suffer the significant 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 herethus 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
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precedent protecting the right of a married couple not toprocreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment 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’straditions make clear that marriage is a keystone of oursocial order. Alexis de Tocqueville recognized this truthon his travels through the United States almost two centuries 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 public life to the bosom of his family, he finds in it the image 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 whichthere would be neither civilization nor progress.” Marriage, the Maynard Court said, has long been “‘a greatpublic 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 eachother, so does society pledge to support the couple, offeringsymbolic recognition and material benefits to protect and nourish the union. Indeed, while the States are in generalfree to vary the benefits they confer on all married couples, they have throughout our history made marriage the
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basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority;adoption rights; the rights and benefits of survivors; birthand death certificates; professional ethics rules; campaignfinance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation 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 centerof 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 oftheir 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 aninstability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriageall the more precious by the significance it attaches to it,exclusion from that status has the effect of teaching thatgays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them outof a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes ofmarriage 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 tomarry is now manifest. With that knowledge must come
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the recognition that laws excluding same-sex couples fromthe marriage right impose stigma and injury of the kindprohibited by our basic charter.
Objecting that this does not reflect an appropriate framing 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 assertthe petitioners do not seek to exercise the right to marrybut rather a new and nonexistent “right to same-sex marriage.” Brief for Respondent in No. 14–556, p. 8. Glucksberg 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 assertedright there involved (physician-assisted suicide), it isinconsistent with the approach this Court has used indiscussing other fundamental rights, including marriageand intimacy. Loving did not ask about a “right to interracial marriage”; Turner did not ask about a “right ofinmates to marry”; and Zablocki did not ask about a “rightof fathers with unpaid child support duties to marry.”Rather, each case inquired about the right to marry in itscomprehensive sense, asking if there was a sufficientjustification 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 bywho exercised them in the past, then received practicescould 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 rightto marry and the rights of gays and lesbians. See Loving388 U. S., at 12; Lawrence, 539 U. S., at 566–567.
The right to marry is fundamental as a matter of historyand tradition, but rights come not from ancient sources
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alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty thatremains urgent in our own era. Many who deem same-sex marriage to be wrong reach that conclusion based ondecent 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 toput 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 couplesseek in marriage the same legal treatment as opposite-sexcouples, and it would disparage their choices and diminishtheir 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 isderived, too, from that Amendment’s guarantee of theequal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profoundway, though they set forth independent principles. Rightsimplicit in liberty and rights secured by equal protectionmay rest on different precepts and are not always coextensive, yet in some instances each may be instructiveas 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 definition of the right. See M. L. B., 519 U. S., at 120– 121; id., at 128–129 (KENNEDY, J., concurring in judgment); Bearden v. Georgia, 461 U. S. 660, 665 (1983). This interrelation of the two principles furthers our understanding 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
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first declared the prohibition invalid because of its unequal treatment of interracial couples. It stated: “There can be no doubt that restricting the freedom to marrysolely because of racial classifications violates the centralmeaning 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 abasis as the racial classifications embodied in these statutes, classifications so directly subversive of the principleof equality at the heart of the Fourteenth Amendment, issurely to deprive all the State’s citizens of liberty withoutdue process of law.” Ibid. The reasons why marriage is afundamental right became more clear and compelling from a full awareness and understanding of the hurt that resulted from laws barring interracial unions.
The synergy between the two protections is illustratedfurther in Zablocki. There the Court invoked the EqualProtection Clause as its basis for invalidating the challenged law, which, as already noted, barred fathers who were behind on child-support payments from marryingwithout judicial approval. The equal protection analysisdepended 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 marriageright, discussed at length in Zablocki, see id., at 383–387, that made apparent the law’s incompatibility with requirements of equality. Each concept—liberty and equalprotection—leads to a stronger understanding of the other.
Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged. To take but one period, this occurredwith respect to marriage in the 1970’s and 1980’s. Notwithstanding the gradual erosion of the doctrine of cover21
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ture, see supra, at 6, invidious sex-based classifications in marriage remained common through the mid-20th century. See App. to Brief for Appellant in Reed v. Reed, O. T. 1971, No. 70–4, pp. 69–88 (an extensive reference to lawsextant as of 1971 treating women as unequal to men inmarriage). These classifications denied the equal dignityof 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 ismerged in the husband, except so far as the law recognizesher 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 principles 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 precedentsshow the Equal Protection Clause can help to identifyand correct inequalities in the institution of marriage,vindicating precepts of liberty and equality under the Constitution.
Other cases confirm this relation between liberty andequality. In M. L. B. v. S. L. J., the Court invalidated under due process and equal protection principles a statute requiring indigent mothers to pay a fee in order toappeal the termination of their parental rights. See 519
U. S., at 119–124. In Eisenstadt v. Baird, the Court invoked 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 invalidated under both principles a law that allowed steriliza22
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tion of habitual criminals. See 316 U. S., at 538–543.
In Lawrence the Court acknowledged the interlockingnature 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 lawsmaking intimacy in the lives of gays and lesbians a crimeagainst the State. See ibid. Lawrence therefore drew upon principles of liberty and equality to define and protect the rights of gays and lesbians, holding the State“cannot demean their existence or control their destiny bymaking 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 acknowledgedthat 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 benefitsafforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a longhistory of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave andcontinuing harm. The imposition of this disability on gaysand lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due ProcessClause, prohibits this unjustified infringement of thefundamental 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 theliberty 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
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longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged 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, litigation, and debate. The respondents warn there has beeninsufficient democratic discourse before deciding an issueso basic as the definition of marriage. In its ruling on thecases now before this Court, the majority opinion for the Court of Appeals made a cogent argument that it would beappropriate for the respondents’ States to await furtherpublic 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 ascountless studies, papers, books, and other popular andscholarly writings. There has been extensive litigation instate 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, reflectthe 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
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for resolution as a matter of constitutional law.
Of course, the Constitution contemplates that democracy 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 canlearn 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 oneof its essential dimensions, of the right of the individualnot to be injured by the unlawful exercise of governmental power.” Id., at ___ (slip op., at 15). Thus, when the rightsof 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 rightsaffects issues of the utmost importance and sensitivity.
The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their owndirect, 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 beyondthe reach of majorities and officials and to establish themas legal principles to be applied by the courts.” West Virginia 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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It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process. The issue before the Court here is the legal question 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 alaw criminalizing same-sex intimacy. See 478 U. S., at 186, 190–195. That approach might have been viewed asa cautious endorsement of the democratic process, whichhad only just begun to consider the rights of gays andlesbians. Yet, in effect, Bowers upheld state action thatdenied 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 correctholding 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 Brennanand 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. Dignitarywounds 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 theFourteenth Amendment. The petitioners’ stories makeclear the urgency of the issue they present to the Court. James Obergefell now asks whether Ohio can erase hismarriage to John Arthur for all time. April DeBoer andJayne Rowse now ask whether Michigan may continue to deny them the certainty and stability all mothers desire toprotect their children, and for them and their children thechildhood years will pass all too soon. Ijpe DeKoe and
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Thomas Kostura now ask whether Tennessee can deny toone who has served this Nation the basic dignity of recognizing his New York marriage. Properly presented withthe petitioners’ cases, the Court has a duty to addressthese claims and answer these questions.
Indeed, faced with a disagreement among the Courts ofAppeals—a disagreement that caused impermissible geographic variation in the meaning of federal law—theCourt 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 itshand 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 couplesto wed will harm marriage as an institution by leading to fewer opposite-sex marriages. This may occur, the respondents contend, because licensing same-sex marriagesevers the connection between natural procreation andmarriage. That argument, however, rests on a counterintuitive view of opposite-sex couple’s decisionmaking processes regarding marriage and parenthood. Decisions about whether to marry and raise children are based onmany personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple 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 thatstate recognition of the love and commitment between same-sex couples will alter the most intimate and personaldecisions of opposite-sex couples”). The respondents havenot shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they
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describe. Indeed, with respect to this asserted basis for excluding same-sex couples from the right to marry, it isappropriate 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 advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations andpersons are given proper protection as they seek to teach the principles that are so fulfilling and so central to theirlives and faiths, and to their own deep aspirations tocontinue 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. The Constitution, however, does not permit the State to bar same-sex couples from marriage on thesame terms as accorded to couples of the opposite sex.
V These cases also present the question whether the Constitution requires States to recognize same-sex marriages validly performed out of State. As made clear by the caseof Obergefell and Arthur, and by that of DeKoe and Kos- tura, the recognition bans inflict substantial and continuingharm on same-sex couples.Being married in one State but having that valid marriage denied in another is one of “the most perplexing and distressing complication[s]” in the law of domestic relations. 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 pro28
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mote instability and uncertainty. For some couples, evenan ordinary drive into a neighboring State to visit familyor friends risks causing severe hardship in the event of aspouse’s hospitalization while across state lines. In lightof the fact that many States already allow same-sex marriage—and hundreds of thousands of these marriagesalready have occurred—the disruption caused by therecognition bans is significant and ever-growing.
As counsel for the respondents acknowledged at argument, if States are required by the Constitution to issuemarriage licenses to same-sex couples, the justifications for refusing to recognize those marriages performed elsewhere are undermined. See Tr. of Oral Arg. on Question 2, p. 44. The Court, in this decision, holds same-sex couples 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 performedin another State on the ground of its same-sex character.
* * * No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become 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 dorespect it, respect it so deeply that they seek to find itsfulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’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.
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Appendix 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)
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30 OBERGEFELL v. HODGES
Appendix 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) 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) 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)
Sevcik v. Sandoval, 911 F. Supp. 2d 996 (Nev. 2012) Merritt v. Attorney General, 2013 WL 6044329 (MD La.,
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
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31 Cite as: 576 U. S. ____ (2015)
Appendix 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. Resinger, 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) 5320642 (Ariz., Oct. 17, 2014) (Kan., Nov. 4, 2014) (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) 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)
Majors v. Horne, 14 F. Supp. 3d 1313 (Ariz. 2014) Connolly v. Jeanes, ___ F. Supp. 3d ___, 2014 WL
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
Lawson v. Kelly, 58 F. Supp. 3d 923 (WD Mo. 2014) McGee v. Cole, ___ F. Supp. 3d ___, 2014 WL 5802665
Rolando v. Fox, 23 F. Supp. 3d 1227 (Mont. 2014) Jernigan v. Crane, ___ F. Supp. 3d ___, 2014 WL
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32 OBERGEFELL v. HODGES
Appendix 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)
Opinion of the Court
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Appendix 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)
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34 OBERGEFELL v. HODGES
Appendix 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 D. 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. 92013 Minn Laws p. 4042009 N. H. Laws p. 602011 N. Y Laws p. 7492013 R. I. Laws p. 72009 Vt. Acts & Resolves p. 332012 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)
_________________
_________________
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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-sexcouples. That position has undeniable appeal; over the
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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 whatthe law is, not what it should be. The people who ratifiedthe Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered).
Although the policy arguments for extending marriageto same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to makea State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that haspersisted in every culture throughout human history canhardly 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-sexcouples, or to retain the historic definition.
Today, however, the Court takes the extraordinary stepof ordering every State to license and recognize same-sexmarriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sexmarriage have achieved considerable success persuading their fellow citizens—through the democratic process—toadopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriageas a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much moredifficult to accept.
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ROBERTS, C. J., dissenting
The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution 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 invalidates 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 preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution “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 withthe 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 question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutralprinciples of constitutional law, but on its own “understanding 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 marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through theirelected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legaldisputes according to law. The Constitution leaves no doubt about the answer.
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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, theConstitution protects a right to marry and requires Statesto apply their marriage laws equally. The real question in these cases is what constitutes “marriage,” or—moreprecisely—who decides what constitutes “marriage”?
The majority largely ignores these questions, relegatingages 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 hasso long been settled” without showing greater respect forall that preceded us. Town of Greece v. Galloway, 572
U. S. ___, ___ (2014) (slip op., at 8).
A As the majority acknowledges, marriage “has existed formillennia 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 aman and a woman is no historical coincidence. Marriagedid not come about as a result of a political movement,discovery, disease, war, religious doctrine, or any othermoving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbiCite
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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 instinct 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 sofundamental 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 motherand 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 occuronly between a man and a woman committed to a lasting bond.
Society has recognized that bond as marriage. And bybestowing a respected status and material benefits onmarried couples, society encourages men and women to conduct sexual relations within marriage rather thanwithout. As one prominent scholar put it, “Marriage is asocially 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 majorityaccepts that at “the time of the Nation’s founding [marriage] was understood to be a voluntary contract between
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a man and a woman.” Ante, at 6. Early Americans drew heavily on legal scholars like William Blackstone, whoregarded marriage between “husband and wife” as one of the “great relations in private life,” and philosophers likeJohn Locke, who described marriage as “a voluntary compact between man and woman” centered on “its chief end,procreation” and the “nourishment and support” of children. 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 “wasa given: its structure, its stability, roles, and values accepted 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]hewhole 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 Statethroughout our history until a dozen years ago—definedmarriage 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 dictionary, 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 thesexes, . . . promoting domestic felicity, and . . . securing the
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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 ofMarriage and Divorce 25 (1852). The first edition of Black’s Law Dictionary defined marriage as “the civilstatus 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 definitionfor the next century.
This Court’s precedents have repeatedly described marriage in ways that are consistent only with its traditional meaning. Early cases on the subject referred tomarriage as “the union for life of one man and one woman,” 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 aprocreative 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 havechanged 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 thatrespect each participant’s separate status. Racial restrictions on marriage, which “arose as an incident to slavery” to promote “White Supremacy,” were repealed bymany States and ultimately struck down by this Court.
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Loving, 388 U. S., at 6–7.
The majority observes that these developments “werenot 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 manand a woman. If you had asked a person on the street how marriage was defined, no one would ever have said, “Marriage is the union of a man and a woman, where the woman is subject to coverture.” The majority may be right thatthe “history of marriage is one of both continuity andchange,” but the core meaning of marriage has endured. Ante, at 6.
B Shortly after this Court struck down racial restrictionson 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 thesame sex for the same reasons that it requires States toallow marriage between people of different races. The Minnesota Supreme Court rejected their analogy to Loving, 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 thatcould be extended to such couples. Until recently, thisnew view of marriage remained a minority position. After the Massachusetts Supreme Judicial Court in 2003 interpreted 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
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shifted rapidly. In 2009, the legislatures of Vermont, New Hampshire, and the District of Columbia became the firstin 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 referendumjust three years earlier in which they had upheld the traditional definition of marriage.
In all, voters and legislators in eleven States and theDistrict of Columbia have changed their definitions ofmarriage to include same-sex couples. The highest courtsof 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 DueProcess and Equal Protection Clauses of the FourteenthAmendment compel their States to license and recognize marriages between same-sex couples. In a carefully reasoned decision, the Court of Appeals acknowledged thedemocratic “momentum” in favor of “expand[ing] the definition of marriage to include gay couples,” but concluded that petitioners had not made “the case for constitutionalizing the definition of marriage and for removingthe issue from the place it has been since the founding: inthe 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 theirStates violate the Due Process Clause. The Solicitor General of the United States, appearing in support of petitioners, expressly disowned that position before this Court. See Tr. of Oral Arg. on Question 1, at 38–39. The majoritynevertheless resolves these cases for petitioners based
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almost entirely on the Due Process Clause.
The majority purports to identify four “principles andtraditions” 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 approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that characterized 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 marrybecause 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 position indefensible as a matter of constitutional law.
A Petitioners’ “fundamental right” claim falls into themost sensitive category of constitutional adjudication. Petitioners do not contend that their States’ marriage lawsviolate an enumerated constitutional right, such as the freedom of speech protected by the First Amendment. There is, after all, no “Companionship and Understanding” or “Nobility and Dignity” Clause in the Constitution. See ante, at 3, 14. They argue instead that the laws violate a right implied by the Fourteenth Amendment’srequirement that “liberty” may not be deprived without “due process of law.”This Court has interpreted the Due Process Clause toinclude a “substantive” component that protects certainliberty interests against state deprivation “no matter whatprocess 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 rankedas fundamental,” and therefore cannot be deprived without compelling justification. Snyder v. Massachusetts, 291
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U. S. 97, 105 (1934).
Allowing unelected federal judges to select which unenumerated rights rank as “fundamental”—and to strike down state laws on the basis of that determination—raises obvious concerns about the judicial role. Our precedentshave accordingly insisted that judges “exercise the utmost care” in identifying implied fundamental rights, “lest theliberty protected by the Due Process Clause be subtlytransformed 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 Restraint 13 (1986) (Address at Stanford) (“One can conclude that certain essential, or fundamental, rights should existin 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 idealsystem.”).
The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantivedue 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 restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted that “an act of Congress which deprives a citizen of the UnitedStates of his liberty or property, merely because he camehimself or brought his property into a particular Territoryof the United States . . . could hardly be dignified with thename of due process of law.” Id., at 450. In a dissent that has outlasted the majority opinion, Justice Curtis explained that when the “fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical
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opinions of individuals are allowed to control” the Constitution’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 ofthe Civil War and by constitutional amendment afterAppomattox, but its approach to the Due Process Clausereappeared. 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 interferencewith 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 foundation for holding this to be necessary or appropriate as ahealth law.” Id., at 58.
The dissenting Justices in Lochner explained that theNew York law could be viewed as a reasonable response tolegislative 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 requiredadopting 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 putit, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” a leading work on the philosophy 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 concludeour judgment upon the question whether statutes embody13
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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, oftenover strong dissents contending that “[t]he criterion ofconstitutionality is not whether we believe the law to befor the public good.” Adkins v. Children’s Hospital of
D. C., 261 U. S. 525, 570 (1923) (opinion of Holmes, J.). Byempowering 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 vowednot to repeat it. “The doctrine that . . . due process authorizes 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 judgment 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 wisdomof legislation”). Thus, it has become an accepted rule that the Court will not hold laws unconstitutional simply because we find them “unwise, improvident, or out of harmony 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 thedoctrine of implied fundamental rights, and this Court hasnot done so. But to avoid repeating Lochner’s error of converting personal preferences into constitutional mandates, our modern substantive due process cases havestressed the need for “judicial self-restraint.” Collins v. Harker Heights, 503 U. S. 115, 125 (1992). Our precedentshave required that implied fundamental rights be “objec14
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tively, deeply rooted in this Nation’s history and tradition,” 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 Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); see also id., at 544 (White, J., dissenting) (“The Judiciary, including this Court, is the most vulnerable and comes nearestto illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language 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 traditions, and practices’” and concluding that “[w]e owe it tothe 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 requires looking beyond the individual law being challenged, so that every restriction on liberty does not supply its ownconstitutional 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 imposeslimits 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 identify15
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ing fundamental rights, ante, at 10–11, does not provide a meaningful constraint on a judge, for “what he is reallylikely to be ‘discovering,’ whether or not he is fully aware of it, are his own values,” J. Ely, Democracy and Distrust44 (1980). The only way to ensure restraint in this delicate enterprise is “continual insistence upon respect for the teachings of history, solid recognition of the basicvalues that underlie our society, and wise appreciation of the great roles [of] the doctrines of federalism and separation of powers.” Griswold v. Connecticut, 381 U. S. 479, 501 (1965) (Harlan, J., concurring in judgment).
B The majority acknowledges none of this doctrinal background, and it is easy to see why: Its aggressive application of substantive due process breaks sharply with decades of precedent and returns the Court to the unprincipled approach of Lochner.
1 The majority’s driving themes are that marriage isdesirable and petitioners desire it. The opinion describesthe “transcendent importance” of marriage and repeatedlyinsists 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 compellingpersonal accounts of petitioners and others like them are likely a primary reason why many Americans havechanged 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 primarilyon 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
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do not hold, of course, that anyone who wants to get married has a constitutional right to do so. They insteadrequire a State to justify barriers to marriage as thatinstitution has always been understood. In Loving, the Court held that racial restrictions on the right to marrylacked 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 tochange 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 therefore did not change what a marriage was any more thanintegrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed inevery one of these cases “presumed a relationship involving opposite-sex partners.” Ante, at 11.
In short, the “right to marry” cases stand for the important but limited proposition that particular restrictionson 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 isthe right petitioners actually seek here. See Windsor, 570
U. S., at ___ (ALITO, J., dissenting) (slip op., at 8) (“WhatWindsor and the United States seek . . . is not the protection of a deeply rooted right but the recognition of a verynew right.”). Neither petitioners nor the majority cites a
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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 instructive precedents” informing the right to marry. Ante, at 12. Although not entirely clear, this reference seems tocorrespond to a line of cases discussing an implied fundamental “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 quotation 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 “unwarranted government intrusions” that “touc[h] upon the most private human conduct, sexual behavior . . . in themost 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 asserthere. Unlike criminal laws banning contraceptives andsodomy, the marriage laws at issue here involve no government 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 loneli18
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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 influentialdissenting 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 discretionthat the majority discerns, Justice Harlan’s opinion makes clear that courts implying fundamental rights are not“free to roam where unguided speculation might takethem.” Ibid. They must instead have “regard to what history teaches” and exercise not only “judgment” but“restraint.” Ibid. Of particular relevance, Justice Harlanexplained 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 doctrine in this area must build upon that basis.” Id., at 546.
In sum, the privacy cases provide no support for themajority’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 entitlementsfrom 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 precedentscertainly plays a role in protecting the intimate conduct of same-sex couples, it provides no affirmative right to redefine marriage and no basis for striking down the laws atissue here.
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3 Perhaps recognizing how little support it can derivefrom precedent, the majority goes out of its way to jettison the “careful” approach to implied fundamental rightstaken by this Court in Glucksberg. Ante, at 18 (quoting 521 U. S., at 721). It is revealing that the majority’s position 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 majorityof 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 topersonal choice regarding marriage is inherent in theconcept of individual autonomy.” Ante, at 12. This freewheeling notion of individual autonomy echoes nothing somuch 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 individual 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 allwho 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’sown 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 themthis 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
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adopted in Lochner. See 198 U. S., at 61 (“We do not believe in the soundness of the views which uphold thislaw,” which “is an illegal interference with the rights ofindividuals . . . 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 cautious 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 approach” to implying fundamental rights after the debacleof the Lochner era. Today, the majority casts cautionaside and revives the grave errors of that period.
One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Cf. Brown v. Buhman, 947
F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 144117 (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 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 reasoningwould apply with equal force to the claim of a fundamentalright to plural marriage. If “[t]here is dignity in the bondbetween two men or two women who seek to marry and intheir autonomy to make such profound choices,” ante, at 13, 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? If a same-sex couple has the constitutional right to marry because their
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children would otherwise “suffer the stigma of knowingtheir families are somehow lesser,” ante, at 15, whywouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gayand lesbian couples, why wouldn’t the same “imposition ofthis disability,” ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000polyamorous families in the United States); Li, MarriedLesbian “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 maywell be relevant differences that compel different legalanalysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oralargument, 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 northe welfare of the public, and that the interest of thepublic is not in the slightest degree affected by such anact.” 198 U. S., at 57.
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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 attractivemoral 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 requires the Court to be guided by law, not any particularschool of social thought. As Judge Henry Friendly onceput 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’sSocial 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 atantalizing 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 fundamentalrights have roots in the history and tradition of our peopleis to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not onlyoverlooks 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
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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 alsorelied on the other. Ante, at 20. Absent from this portionof the opinion, however, is anything resembling our usualframework for deciding equal protection cases. It is casebook doctrine that the “modern Supreme Court’s treatment of equal protection claims has used a means-ends methodology in which judges ask whether the classification the government is using is sufficiently related to thegoals 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 notalways co-extensive, yet in some instances each maybe 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 twoClauses may converge in the identification and definition of the right.” Ante, at 19.
The majority goes on to assert in conclusory fashion thatthe Equal Protection Clause provides an alternative basis for its holding. Ante, at 22. Yet the majority fails to provide even a single sentence explaining how the Equal
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Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional 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 theEqual 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 petitioners have challenged. Although they discuss some ofthe ancillary legal benefits that accompany marriage, suchas hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits targetthe laws defining marriage generally rather than those allocating benefits specifically. The equal protectionanalysis might be different, in my view, if we were confronted 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 recognize marriages between same-sex couples.
IV The legitimacy of this Court ultimately rests “upon therespect 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—andreality—that we exercise humility and restraint in deciding 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
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people, who are responsible for making “new dimensions offreedom . . . apparent to new generations,” for providing“formal discourse” on social issues, and for ensuring “neutral discussions, without scornful or disparaging commentary.” Ante, at 7–9.
Nowhere is the majority’s extravagant conception ofjudicial 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 societyknown 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. Ante, at 9, 10, 23. What would be the point of allowing the democratic process to go on? It is high time for the Courtto 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 togovern themselves. They would never have imaginedyielding that right on a question of social policy to unaccountable and unelected judges. And they certainly wouldnot 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 thelegislative branch or the executive branch in the positionof a television quiz show contestant so that when a given period of time has elapsed and a problem remains unre26
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solved by them, the federal judiciary may press a buzzerand 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 lastyear, “It is demeaning to the democratic process to presume 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, andsometimes changing their minds. They see political leaders similarly reexamining their positions, and either reversing course or explaining adherence to old convictionsconfirmed anew. They see governments and businessesmodifying policies and practices with respect to same-sex couples, and participating actively in the civic discourse. They see countries overseas democratically acceptingprofound social change, or declining to do so. This deliberative 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 results. But those whose views do not prevail at least knowthat they have had their say, and accordingly are—in thetradition of our political culture—reconciled to the resultof a fair and honest debate. In addition, they can gear upto raise the issue later, hoping to persuade enough on thewinning side to think again. “That is exactly how oursystem 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
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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 anissue of such profound public significance. Closing debatetends to close minds. People denied a voice are less likelyto 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 enoughfor advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handedjudicial intervention was difficult to justify and appears tohave provoked, not resolved, conflict.” Ginsburg, SomeThoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985) (footnoteomitted). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging 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 changewere 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 havethe flexibility of legislatures to address concerns of partiesnot before the court or to anticipate problems that mayarise 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 exercisereligion is—unlike the right imagined by the majority—actually spelled out in the Constitution. Amdt. 1.
Respect for sincere religious conviction has led votersand legislators in every State that has adopted same-sex marriage democratically to include accommodations for
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religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religiousbelievers 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 exercisereligion 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 marriedcouples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. 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 majoritytoday.
Perhaps the most discouraging aspect of today’s decisionis the extent to which the majority feels compelled to sullythose on the other side of the debate. The majority offers acursory 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 codifying the traditional definition of marriage is to “demea[n]or stigmatiz[e]” same-sex couples. Ante, at 19. The majority 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 defini29
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tion of marriage—have acted to “lock . . . out,” “disparage,”“disrespect and subordinate,” and inflict “[d]ignitarywounds” upon their gay and lesbian neighbors. Ante, at 17, 19, 22, 25. These apparent assaults on the character offairminded 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 majority to conclude that the Constitution protects a right tosame-sex marriage; it is something else to portray everyone 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 Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around theworld have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.
* * * If you are among the many Americans—of whateversexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity 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.
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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 separately to call attention to this Court’s threat to Americandemocracy.
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.
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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 marriage. 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 theCourt’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important 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 oversame-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens 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 representatives, chose to expand the traditional definition of marriage. 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——————
1Brief for Respondents in No. 14–571, p. 14.
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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 seizures,8 and so forth. Aside from these limitations, those powers “reserved to the States respectively, or to thepeople”9 can be exercised as the States or the People desire. These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the Statesto 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 prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only twoyears ago (in an opinion joined by the same Justices who join him today):
“[R]egulation of domestic relations is an area that haslong been regarded as a virtually exclusive province of the States.”10
—————— 2Accord, Schuette v. BAMN, 572 U. S. ___, ___–___ (2014) (plurality opinion) (slip op., at 15–17). 3U. S. Const., Art. I, §10. 4Art. IV, §1. 5Amdt. 1. 6 Ibid. 7Amdt. 2. 8Amdt. 4. 9Amdt. 10. 10 United States v. Windsor, 570 U. S. ___, ___ (2013) (slip op., at 16)(internal quotation marks and citation omitted).
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“[T]he Federal Government, through our history, hasdeferred 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 limitedmarriage 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 understand it to prohibit a practice that remained both universal 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 whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debateover same-sex marriage must be allowed to continue.
But the Court ends this debate, in an opinion lackingeven 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 ratified the Bill of Rights and the Fourteenth Amendment didnot presume to know the extent of freedom in all of its
—————— 11 Id., at ___ (slip op., at 17). 12See Town of Greece v. Galloway, 572 U. S. ___, ___–___ (2014) (slip op., at 7–8). 13 Ante, at 10.
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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 perhaps “. . . 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 themajority’s judge-empowering estimation, is: “and so theyentrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”15 The “we,” needless to say, is the nine of us. “Historyand 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 institutionconsisting 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, eventhose that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the Peoplesubordinate 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 constituency is not (or should not be) relevant. Not surprisingly 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.
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of America. Take, for example, this Court, which consistsof only nine men and women, all of them successful lawyers18 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 evangelicalChristian (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 aconstitutional provision that was understood to proscribethe 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 ofsame-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 intoday’s judicial Putsch. The five Justices who composetoday’s majority are entirely comfortable concluding that
—————— 18The predominant attitude of tall-building lawyers with respect to the questions presented in these cases is suggested by the fact that theAmerican 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. 1–5.19See Pew Research Center, America’s Changing Religious Landscape 4 (May 12, 2015).
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every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratificationand Massachusetts’ permitting of same-sex marriages in2003.20 They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every personalive at the time of ratification, and almost everyone elsein 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 theFourteenth Amendment to bestow on them the power toremove questions from the democratic process when thatis 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 arewilling 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 pretentiousas its content is egotistic. It is one thing for separate concurring 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). 22If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to allwithin its reach, a liberty that includes certain specific rights that
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profoundly incoherent. “The nature of marriage is that,through its enduring bond, two persons together can findother freedoms, such as expression, intimacy, and spirituality.”23 (Really? Who ever thought that intimacy andspirituality [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 thathappy state constricts, rather than expands, what one canprudently say.) Rights, we are told, can “rise . . . from abetter informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”24 (Huh? How can a better informed understanding of how constitutional imperatives [whatever thatmeans] 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 essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.”25 (What say? What possible “essence” does substantive dueprocess “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms 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 theUnited States has descended from the disciplined legal reasoning ofJohn Marshall and Joseph Story to the mystical aphorisms of the fortune cookie. 23 Ante, at 13. 24 Ante, at 19. 25 Ibid.
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really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in theidentification and definition of [a] right,” that is onlybecause 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 contained 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 mustultimately 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 unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer tobeing reminded of our impotence.
—————— 26The Federalist No. 78, pp. 522, 523 (J. Cooke ed. 1961) (A. Hamilton).
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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 theConstitution, but with the principles upon which ourNation was built. Since well before 1787, liberty has beenunderstood as freedom from government action, not entitlement to government benefits. The Framers created our
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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. Alongthe 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 distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state inour Republic. I cannot agree with it.
I The majority’s decision today will require States to issuemarriage licenses to same-sex couples and to recognize same-sex marriages entered in other States largely basedon a constitutional provision guaranteeing “due process”before a person is deprived of his “life, liberty, or property.” I have elsewhere explained the dangerous fiction oftreating 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 guarantees only whatever “process” is “due” before a person isdeprived 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 constitutional 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 injudgment in part and dissenting in part) (quoting Griswold v. Connecticut, 381 U. S. 479, 502 (1965) (Harlan, J.,concurring in judgment)).
By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority. Petitioners argue
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that by enshrining the traditional definition of marriage intheir State Constitutions through voter-approved amendments, the States have put the issue “beyond the reach ofthe 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 toenshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normaldemocratic process for the entire Nation. That a “bare majority” of this Court, ante, at 25, is able to grant thiswish, wiping out with a stroke of the keyboard the results of the political process in over 30 States, based on a provision that guarantees only “due process” is but furtherevidence of the danger of substantive due process.1
II Even if the doctrine of substantive due process weresomehow 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 majorityclaims these state laws deprive petitioners of “liberty,” but the concept of “liberty” it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses.
—————— 1The 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 upits substantive due process analysis, an analysis both based on animaginary constitutional protection and revisionist view of our history and tradition.
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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, Commentaries 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 originalMagna Carta provided, “No free man shall be taken, imprisoned, 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, MagnaCarta: 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 withmodest changes to its wording as follows: “No freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, 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 yearslater, 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
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of every Englishman.” 1 Blackstone 123. And he formulated those absolute rights as “the right of personal security,” 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 ofloco-motion, of changing situation, or removing one’sperson 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 formulation, adopting provisions in early State Constitutions thatreplicated Magna Carta’s language, but were modified torefer specifically to “life, liberty, or property.”3 State ——————
2The seeds of this articulation can also be found in Henry Care’sinfluential treatise, English Liberties. First published in America in1721, 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 procureone’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.
3Maryland, 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 disseizedof his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but bythe judgment of his peers, or by the law of the land.” Md. Const., Declaration of Rights, Art. XXI (1776), in 3 Federal and State Constitutions, 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. Massachusetts and New Hampshire did the same, albeit with some alterations to Magna Carta’s framework: “[N]o subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, orprivileges, 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 theland.” Mass. Const., pt. I, Art. XII (1780), in 3 id., at 1891; see also
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decisions interpreting these provisions between the founding and the ratification of the Fourteenth Amendmentalmost 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 habeascorpus 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, orproperty” formulation, though they otherwise deviated substantially from the States’ use of Magna Carta’s language in the Clause. See Shattuck, The True Meaning of the Term “Liberty” in Those Clauses in the Federal andState Constitutions Which Protect “Life, Liberty, andProperty,” 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 interpreted to include anything broader than freedom from physical restraint. That was the consistent usage of thetime when “liberty” was paired with “life” and “property.”See id., at 375. And that usage avoids rendering superfluous those protections for “life” and “property.”
If the Fifth Amendment uses “liberty” in this narrow sense, then the Fourteenth Amendment likely does aswell. 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 [aswas 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.
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Court’s earliest Fourteenth Amendment decisions appearto interpret the Clause as using “liberty” to mean freedomfrom 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 recentyears does not justify deviating from the original meaningof the Clauses.
2 Even assuming that the “liberty” in those Clauses encompasses something more than freedom from physicalrestraint, it would not include the types of rights claimedby the majority. In the American legal tradition, libertyhas long been understood as individual freedom from governmental action, not as a right to a particular governmental 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 Revolution 27 (1967). Locke described men as existing in a stateof nature, possessed of the “perfect freedom to order their actions and dispose of their possessions and persons asthey 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 Government, §4, p. 4 (J. Gough ed. 1947) (Locke). Because that state of nature left men insecure in their persons andproperty, they entered civil society, trading a portion of their natural liberty for an increase in their security. See
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id., §97, at 49. Upon consenting to that order, men obtained civil liberty, or the freedom “to be under no other legislative power but that established by consent in thecommonwealth; 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 politicalscene 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 afree 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 Controul.” Boston Gazette and Country Journal, No. 58, May 10, 1756, p. 1. Similar sentiments were expressed inpublic speeches, sermons, and letters of the time. See 1 C.
—————— 4Locke’s theories heavily influenced other prominent writers of the 17th and 18th centuries. Blackstone, for one, agreed that “naturalliberty 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 inpart), 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. Rutherforth, Institutes of Natural Law 146 (1754). Rutherforth explained that “[t]he only restraint, which a mans right over his own actions isoriginally under, is the obligation of governing himself by the law ofnature, and the law of God,” and that “[w]hatever right those of ourown species may have . . . to restrain [those actions] within certainbounds, beyond what the law of nature has prescribed, arises from some after-act of our own, from some consent either express or tacit, bywhich we have alienated our liberty, or transferred the right of directing our actions from ourselves to them.” Id., at 147–148.
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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 thosefreedoms that existed outside of government. See Hamburger, Natural Rights, Natural Law, and American Constitutions, 102 Yale L. J. 907, 918–919 (1993). As one later commentator observed, “[L]iberty in the eighteenthcentury was thought of much more in relation to ‘negativeliberty’; that is, freedom from, not freedom to, freedom from a number of social and political evils, including arbitrary government power.” J. Reid, The Concept of Libertyin 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 thePrinciples 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 manufacturing 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 involvedfreedoms 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 insame-sex relationships. To the contrary, they have beenable to cohabitate and raise their children in peace. They
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have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religiousceremonies 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 restrained, petitioners have been left alone to order their lives as they see fit.
Nor, under the broader definition, can they claim thatthe 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 asmarried, or to raise children. The States have imposed no such restrictions. Nor have the States prevented petitioners 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 governmental entitlements. Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefitsthat 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 certificates, or other official forms. And they want to receivevarious 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 consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers would have recognized.
To the extent that the Framers would have recognized anatural right to marriage that fell within the broader
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definition of liberty, it would not have included a right togovernmental 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 ofone’s spouse—without governmental interference. At the founding, such conduct was understood to predate government, 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, Lectures 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 tomarry, not one of which has expanded the concept of “liberty” beyond the concept of negative liberty. Those precedents all involved absolute prohibitions on private actionsassociated 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——————
5The 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 prohibiting marriages between “ ‘freeborne English women’ ” and “ ‘NegroSla[v]es’ ” was passed as part of the very act that authorized lifelong
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tenced to a year of imprisonment, suspended for a term of 25 years on the condition that they not reenter the Commonwealth 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 criminalpenalty, 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 prohibited from entering marriages without the permission of thesuperintendent 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 suppressing 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, legislators, and judges began to develop the elaborate justifications thatsignified the emergence of miscegenation law and made restrictions on interracial marriage the foundation of post-Civil War white supremacy.” 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 hasprevailed in every society that has recognized marriage throughouthistory. Brief for Scholars of History and Related Disciplines as Amici Curiae 1. It arose not out of a desire to shore up an invidious institution like slavery, but out of a desire “to increase the likelihood that children will be born and raised in stable and enduring family units byboth the mothers and the fathers who brought them into this world.” Id., at 8. And it has existed in civilizations containing all manner ofviews 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-sexsexual relations were common in Greece at the time).
6The prohibition extended so far as to forbid even religious ceremonies, thus raising a serious question under the First Amendment’s FreeExercise 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.
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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 termsand conditions as marriages between persons of the opposite sex.” Ante, at 2. But “liberty” is not lost, nor can it befound 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 understanding of how constitutional imperatives define . . .liberty,” ante, at 19,—better informed, we must assume, than that of the people who ratified the FourteenthAmendment—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 “Thoushalt provides.”
III The majority’s inversion of the original meaning of liberty will likely cause collateral damage to other aspectsof our constitutional order that protect liberty.
A The majority apparently disregards the political process as a protection for liberty. Although men, in forming acivil 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 authorityto exercise natural liberty within the bounds of laws established by that society, id., §22, at 13; see also Hey §§52, 54, at 30–32. To protect that liberty from arbitrary interference, they establish a process by which that society can
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adopt and enforce its laws. In our country, that process isprimarily 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 popularvote, 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 thesociety has been honored.
That process has been honored here. The definition of marriage has been the subject of heated debate in theStates. Legislatures have repeatedly taken up the matteron behalf of the People, and 35 States have put the question 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 process 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 ownhavens for religious practice. Ibid. Many of these havens were initially homogenous communities with established
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religions. Ibid. By the 1780’s, however, “America was inthe wake of a great religious revival” marked by a movetoward free exercise of religion. Id., at 1437. Every Statesave Connecticut adopted protections for religious freedomin 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 libertyin this country, as the Federal Government and the States have reaffirmed their commitment to religious liberty bycodifying protections for religious practice. See, e.g., Religious 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 implicationsfor 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’sdecision 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 churchesare confronted with demands to participate in and endorsecivil marriages between same-sex couples.
The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in asingle paragraph, ante, at 27. And even that gestureindicates 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.” Ibid. Religious liberty is about freedom of action in matters ofreligion generally, and the scope of that liberty is directlycorrelated to the civil restraints placed upon religious
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practice.7
Although our Constitution provides some protection against such governmental restrictions on religious practices, the People have long elected to afford broader protections than this Court’s constitutional precedents mandate. Had the majority allowed the definition of marriageto be left to the political process—as the Constitutionrequires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.
IV Perhaps recognizing that these cases do not actuallyinvolve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advance 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 itdid, 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 Declaration of Independence that “all men are created equal”
—————— 7Concerns about threats to religious liberty in this context are not unfounded. During the hey-day of antimiscegenation laws in thiscountry, for instance, Virginia imposed criminal penalties on ministerswho performed marriage in violation of those laws, though their religions would have permitted them to perform such ceremonies. Va. Code Ann. §20–60 (1960). 8The majority also suggests that marriage confers “nobility” on individuals. 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.
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and “endowed by their Creator with certain unalienableRights,” they referred to a vision of mankind in which allhumans are created in the image of God and therefore ofinherent worth. That vision is the foundation upon whichthis Nation was built.
The corollary of that principle is that human dignitycannot 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 dignitybecause the government confined them. And those denied governmental benefits certainly do not lose their dignitybecause 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, butat least those musings can have no effect on the dignity of the persons the majority demeans. Its mischaracterization 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 toadhere to the traditional definition of marriage. And its disdain for the understandings of liberty and dignity uponwhich 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 Independencebefore it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shieldedfrom—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” toafford substantive rights, disregards the most plausible
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understanding of the “liberty” protected by that clause, and distorts the principles on which this Nation wasfounded. Its decision will have inestimable consequencesfor our Constitution and our society. I respectfully dissent.
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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 peoplewere engaged in a debate about whether their Statesshould recognize same-sex marriage.1 The question in ——————
1I use the phrase “recognize marriage” as shorthand for issuing mar2
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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” inthe Due Process Clause of the Fourteenth Amendment encompasses this right. Our Nation was founded upon theprinciple that every person has the unalienable right to liberty, but liberty is a term of many meanings. For classical 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 theirpersonal 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 tradition.’” 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 marriage until the Massachusetts Supreme Judicial Courtheld 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 nations. No country allowed same-sex couples to marryuntil 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 recognitionof a very new right, and they seek this innovation notfrom a legislative body elected by the people, but from unelected judges. Faced with such a request, judgeshave 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 tosame-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 protection upon that right simply because they believe that it is fundamental.
II Attempting to circumvent the problem presented by thenewness of the right found in these cases, the majorityclaims that the issue is the right to equal treatment.Noting that marriage is a fundamental right, the majorityargues 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 inloftier terms, its argument is that the fundamental purpose 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 benefiting persons who choose to wed, marriage indirectlybenefits society because persons who live in stable, fulfilling, and supportive relationships make better citizens. It is for these reasons, the argument goes, that States
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ALITO, J., dissenting
encourage and formalize marriage, confer special benefitson married persons, and also impose some special obligations. This understanding of the States’ reasons for recognizing marriage enables the majority to argue that same-sex marriage serves the States’ objectives in the same wayas opposite-sex marriage.
This understanding of marriage, which focuses almostentirely 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 different terms to explain why society should formalize marriage and attach special benefits and obligations to persons who marry. Here, the States defending theiradherence to the traditional understanding of marriagehave explained their position using the pragmatic vocabulary that characterizes most American political discourse.Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, inorder to encourage potentially procreative conduct to takeplace within a lasting unit that has long been thought toprovide the best atmosphere for raising children. Theythus argue that there are reasonable secular grounds forrestricting marriage to opposite-sex couples.
If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation hasfrayed. Today, for instance, more than 40% of all children in this country are born to unmarried women.2 This de——————
2See, 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 ofchanges in our society’s understanding of marriage.
While, for many, the attributes of marriage in 21stcentury America have changed, those States that do not want to recognize same-sex marriage have not yet givenup on the traditional understanding. They worry that by officially abandoning the older understanding, they maycontribute to marriage’s further decay. It is far beyondthe 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 otherswith similar cultural roots, but also in a great variety ofcountries and cultures all around the globe.
As I wrote in Windsor:
“The family is an ancient and universal human institution. Family structure reflects the characteristicsof a civilization, and changes in family structure and in the popular understanding of marriage and thefamily can have profound effects. Past changes in theunderstanding of marriage—for example, the gradualascendance of the idea that romantic love is a prerequisite to marriage—have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction ofnumerous 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 nowknown and are unlikely to be ascertainable for some
——————
nvsr64_01.pdf (all Internet materials as visited June 24, 2015, andavailable in Clerk of Court’s case file); cf. Dept. of Health and HumanServices, 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.
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time to come. There are those who think that allowing same-sex marriage will seriously undermine theinstitution of marriage. Others think that recogni- tion of same-sex marriage will fortify a now-shaky institution.
“At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are certainly not equipped to make such an assessment. The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision 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 issue of same-sex marriage. In our system of government, 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 thepeople 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 toassent 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 thisanalogy 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, themajority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rightsof 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 repeatthose 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 Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage 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 Stateswould tie recognition to protection for conscience rights.The majority today makes that impossible. 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 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 impose that right on the rest of the country, the only real limit on what future majorities will be able to do is theirown sense of what those with political power and culturalinfluence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scopeof 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
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preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint andhumility cannot compete with the temptation to achievewhat 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 andperhaps irremediable corruption of our legal culture’sconception of constitutional interpretation.
Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue ofsame-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.

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Corte costituzionale: ritorno alla prudenza

di Stefano Ceccanti

La sentenza di ieri segna per la Corte costituzionale un ritorno alla prudenza. E’ evidente che, differentemente dalla recente sentenza sulle pensioni, che a questo punto sembra essere stata forse una parentesi, si è tornati a considerare l’impatto sulle finanze pubbliche. Si è ripresa la giurisprudenza sulla cosiddetta Robin Tax che aveva cancellato la tassa per le società del settore energetico ma solo pro futuro, senza determinare i buchi che si hanno con decisioni retroattive. Anzi, in questo caso non sembra esserci nessun effetto diretto in termini di costi, neanche pro futuro: si rimuove un divieto a stipulare contratti pubblici, ma non ne nasce un obbligo per il Governo. E’ come se si fosse rimosso un impedimento a sposarsi, ma poi per giungere al matrimonio bisogna convincere il coniuge. Si apre una finestra, ma ora la parola spetta alla politica.

E’ un ritorno importante in termini di cultura della responsabilità perché, contrariamente a una semplicistica visione dei diritti figlia dell’idea che le risorse siano crescenti, l’impatto reale delle decisioni in termini di costi fa parte del diritto, se quest’ultimo è una tecnica per prendere decisioni ragionevoli. Dato che le Corti non sono in grado di moltiplicare le risorse, non hanno il potere di ripetere il miracolo dei pani e dei pesci, è evidente che una qualsiasi decisione a favore di qualcuno diventa anche una decisione a danno di altri, in un gioco fatalmente a somma zero. Non si tratta quindi di sacrificare dei diritti a dei numeri, a dei vincoli astratti, a dei Moloch incomprensibili e crudeli, come immaginano semplicisticamente i sostenitori della visione naif dei diritti, ma di valutare come una scelta impatta sui diritti di altri. La decisione sulle pensioni ha infatti stornato dei fondi che sarebbero altrimenti andati ad altre finalità, tra cui il piano contro le povertà.  Si può certo tentare di replicare a queste osservazioni difendendo la ragionevolezza di quell’eccezione sulle pensioni: un conto potrebbe essere il minimo vitale di pensionati che riscuotono importi di poco superiori al minimo e un altro, invece, la forza delle società del settore energetico o dei dipendenti pubblici in servizio. Ragionamenti plausibili, ma sempre a patto di riflettere in termini responsabili dei pro e dei contro delle varie opzioni, senza rifiutarsi pregiudizialmente di ragionare sull’impatto reale.

Questo ritorno alla prudenza sembra confermato anche da due sentenze in materia elettorale, passate ingiustamente sotto silenzio nei mesi scorsi e che hanno segnato un parziale ritorno indietro dopo la sentenza sulla legge Calderoli: quella sul premio di maggioranza dei Comuni che lo ha legittimato non solo per la diversità dei livelli di governo ma anche per l’esistenza del secondo turno e quella sullo sbarramento nella legge elettorale europea, in cui si è tornati a una visione più rigorosa dell’ammissibilità. La prudenza è, nell’ordinario, una grande dote, soprattutto per gli organi di garanzia.

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Qualche breve chiarimento sul caso De Luca

1. Come si è visto poco fa col caso De Magistris, lo spostamento dal giudice amministrativo a quello ordinario non fa cambiare orientamento. Il giudice ordinario decide velocemente e conferma la sospensione della sospensione, in attesa del giudizio della Corte Costituzionale previsto per metà ottobre. E’ quanto accadrà anche a De Luca, che sarà sospeso solo per pochi giorni.
2. Sul caso De Luca è importante ribadire un aspetto: la legge Severino prevede solo la sospensione, una sanzione temporanea, per gli amministratori che abbiano avuto condanne in primo grado, non la decadenza, che è una sanzione irreversibile. Non si può quindi applicare la legge in modo tale che la sospensione si trasformi in decadenza e che, a catena, si sciolga il Consiglio regionale perché, peraltro, si aggiungerebbe così un’ulteriore tipologia di scioglimento anticipato, mentre quelle stabilite dall’articolo 126 della Costituzione sono tassative.
3. La legge non prevede esplicitamente il caso di un amministratore che debba essere sospeso prima di iniziare il mandato. Cosa si può fare allora? Si potrebbe procedere alla sospensione subito dopo la nomina del vice senza un decreto-legge, facendosi guidare nell’interpretazione dal principio di funzionalità delle istituzioni che porta dritti a questo esito. L’amministrazione, però, teme sempre di muoversi su una linea del genere e, per essere più certa rispetto alle cause che scaturiranno, chiede, come tradizione, una norma di rango legislativo. Non sarebbe strettamente necessaria, ma meglio proteggersi: questo è il senso del parere dell’Avvocatura dello Stato che, probabilmente, il Governo a questo punto seguirà per scrupolo, anche se non sarebbe strettamente necessario.

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Incostituzionalità solo pro futuro

Blocco stipendi PA, Consulta: c’e’ illegittimita’ costituzionale (ilVelino/AGV NEWS) Roma, 24 GIU – La Corte Costituzionale, in relazione alle questioni di legittimita’ costituzionale sollevate con le ordinanze R.O. n. 76/2014 e R.O. n. 125/2014, ha dichiarato, con decorrenza dalla pubblicazione della sentenza, l’illegittimita’ costituzionale sopravvenuta del regime del blocco della contrattazione collettiva per il lavoro pubblico, quale risultante dalle norme impugnate e da quelle che lo hanno prorogato. La Corte ha respinto le restanti censure proposte. Cosi’ una nota dell’ufficio stampa della Consulta

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