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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 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 persons,
within a lawful realm, to define and express their identity. The
petitioners in these cases seek to find that liberty by marrying
someone of the same sex and having their marriages deemed lawful on
the same terms and conditions as marriages between persons of the
opposite sex.

															I

															These cases come from Michigan, Kentucky, Ohio, and Tennessee,
States that define marriage as a union 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 whose
same-sex partners are deceased. The respondents are state officials
responsible for enforcing the laws in question. The petitioners
claim the respondents violate the Fourteenth Amendment by denying
them the right to marry or to have their marriages, lawfully
performed in another State, given full recognition.

															Petitioners filed these suits in United States District Courts
in their home States. Each District Court ruled in their favor.
Citations to those cases are in Appendix A, infra . The
respondents appealed the decisions against them to the United
States Court of Appeals for the Sixth Circuit. It consolidated the
cases and reversed the judgments of the District Courts. DeBoerv. 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 a State to license a marriage between
two people of the same sex. The second, presented by the cases from
Ohio, 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 does grant that right.

															II Before addressing the principles and precedents that
govern these cases, it is appropriate to note the history of the
subject now before the Court. A

															From their beginning to their most recent page, the annals of
human history reveal the transcendent importance of marriage. The
lifelong union of a man and a woman always has promised nobility
and dignity to all persons, without regard to their station in
life. Marriage is sacred to those who live by their religions and
offers unique fulfillment to those who find meaning in the secular
realm. Its dynamic allows two people to find a life that could not
be found alone, for a marriage becomes greater than just the two
persons. Rising from the most basic human needs, marriage is
essential to our most profound hopes and aspirations.

															The centrality of marriage to the human condition makes it
unsurprising that the institution has existed for millennia and
across civilizations. Since the dawn of history, marriage has
transformed strangers into 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, "The
first bond of society is marriage; next, children; and then the
family." See De Officiis 57 (W. Miller transl. 1913). There are
untold references to the beauty of marriage in religious and
philosophical texts spanning time, cultures, and faiths, as well as
in art and literature in all their forms. It is fair and necessary
to say these references were based on the understanding that
marriage is a union between two persons of the opposite sex.

															That history is the beginning of these cases. The 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 contend that these
cases cannot end there. Were their intent to demean the revered
idea and reality of marriage, the petitioners' claims would be of a
different order. But that is neither their purpose nor their
submission. To the contrary, it is the enduring importance of
marriage that underlies the petitioners' contentions. This, they
say, is their whole point. Far from seeking to devalue marriage,
the petitioners seek it for themselves because of their respect and
need for its privileges and responsibilities. And their immutable
nature dictates that same-sex 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 to commit to one
another, resolving to marry before Arthur died. To fulfill their
mutual promise, they traveled from Ohio to Maryland, where same-sex
marriage was legal. It was difficult for Arthur to move, and so the
couple were wed inside a medical transport plane as it remained on
the tarmac in Baltimore. Three months later, Arthur died. Ohio law
does not permit Obergefell to be listed as the surviving spouse on
Arthur's death certificate. By statute, they must remain strangers
even in death, a state-imposed separation Obergefell deems "hurtful
for the rest of time." App. in No. 14 556 etc., p. 38. He brought
suit to be shown as the surviving spouse on Arthur's death
certificate.

															April DeBoer and Jayne Rowse are co-plaintiffs in the case from
Michigan. They celebrated a commitment ceremony to honor their
permanent relation in 2007. They both work as nurses, DeBoer in a
neonatal unit and Rowse in an emergency unit. In 2009, DeBoer and
Rowse 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 biological mother, required
around-the-clock care. The next year, a baby girl with special
needs joined their family. Michigan, however, permits only
opposite-sex married couples or single individuals to adopt, so
each child can have only one woman as his or her legal parent. If
an emergency were to arise, schools and hospitals may treat the
three children as if they had only one parent. And, were tragedy to
befall either DeBoer or Rowse, the other would have no legal rights
over the children she had not been permitted to adopt. This couple
seeks relief from the continuing uncertainty their unmarried status
creates in their lives.

															Army Reserve Sergeant First Class Ijpe DeKoe and his partner
Thomas Kostura, co-plaintiffs in the Tennessee case, fell in love.
In 2011, DeKoe received orders to deploy to Afghanistan. Before
leaving, he and Kostura married in New York. A week later, DeKoe
began his deployment, which lasted for almost a year. When he
returned, the two settled in Tennessee, where DeKoe works full-time
for the Army Reserve. Their lawful marriage is stripped from them
whenever they reside in Tennessee, returning and disappearing as
they travel across state lines. DeKoe, who served this Nation to
preserve the freedom the 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 rather to live their lives,
or honor their spouses' memory, joined by its bond.

															B

															The ancient origins of marriage confirm its centrality, but it
has not stood in isolation from developments in law and society.
The history of marriage is one of both 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 society began to understand that women have their own equal
dignity, the law of coverture was abandoned. See Brief for
Historians of Marriage et al. as Amici Curiae 16 19. These
and other developments in the institution of marriage over the past
centuries were not mere superficial changes. 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 or protests and then are considered in the political
sphere and the judicial process.

															This dynamic can be seen in the Nation's experiences with the
rights of gays and lesbians. Until the mid-20th century, same-sex
intimacy long had been condemned as immoral by the state itself in
most Western nations, a belief often embodied in the criminal law.
For this reason, among others, many persons did not deem
homosexuals to have dignity in their own distinct identity. A
truthful declaration by same-sex couples of what was in their
hearts had to remain unspoken. Even when a greater awareness of the
humanity and integrity of homosexual persons came in the period
after World War II, the 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 most government
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 Psychiatric Association
published the first Diagnostic and Statistical Manual of Mental
Disorders in 1952, homosexuality was classified as a mental
disorder, a position adhered to until 1973. See Position Statement
on Homosexuality and Civil 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 cultural and
political developments, same-sex couples began to lead more open
and public lives and to establish families. This development was
followed by a quite extensive discussion of the issue in both
governmental and private sectors and by a shift in public attitudes
toward greater tolerance. As a result, questions about the rights
of gays and lesbians soon reached the courts, where the issue could
be discussed in the formal discourse of the law.

															This Court first gave detailed consideration to the legal status
of homosexuals in Bowersv. Hardwick , 478 U. S. 186 (1986)
. There it upheld the constitutionality of a Georgia law deemed to
criminalize certain homosexual acts. Ten years later, in Romerv. Evans , 517 U. S. 620 (1996) , the Court
invalidated an amendment to Colorado's Constitution 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 laws making same-sex intimacy a crime "demea[n] the
lives of homosexual persons." Lawrencev. Texas , 539 U. S.
558 .

															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. Baehrv.
Lewin , 74 Haw. 530, 852 P. 2d 44. Although this decision did
not mandate that same-sex marriage be allowed, some States were
concerned by its implications and reaffirmed in their laws that
marriage is defined as a union between opposite-sex partners. So
too in 1996, Congress passed the Defense of Marriage Act (DOMA),
110Stat. 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 Goodridgev. 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
processes. These decisions and statutes are cited in Appendix B, infra . Two Terms ago, in United Statesv. Windsor ,
570 U. S. ___ (2013), this Court invalidated DOMA to the extent it
barred the Federal Government from treating same-sex marriages as
valid even when they were lawful in the State where they were
licensed. DOMA, the Court held, impermissibly disparaged those
same-sex couples "who wanted to affirm their commitment to one
another before their children, their family, their friends, and
their community." Id. , at ___ (slip op., at 14).

															Numerous cases about same-sex marriage have reached the United
States Courts of Appeals in recent years. In accordance with the
judicial duty to base their decisions on principled reasons and
neutral discussions, without 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 the
underlying principles this Court now must consider. With the
exception of the opinion here under review and one other, see
Citizens for Equal Protection v. Bruning, 455 F. 3d 859, 864 868
(CAAdd hyphens between digits006), the Courts of Appeals have held
that excluding same-sex couples from marriage violates the
Constitution. There also have been many thoughtful District Court
decisions addressing same-sex marriage and most of them, too, have
concluded same-sex couples must be allowed to marry. In addition
the highest courts of many States have contributed to this ongoing
dialogue in decisions interpreting their own State Constitutions.
These state and federal judicial opinions are cited in Appendix A,
infra.

															After years of litigation, legislation, referenda, and the
discussions that attended these public acts, the States are now
divided on the issue of same-sex marriage. See Office of the Atty.
Gen. of Maryland, The State of Marriage Equality in America,
State-by-State Supp. (2015).

															III

															Under the Due Process Clause of the Fourteenth Amendment, no
State shall "deprive any person of life, liberty, or property,
without due process of law." The fundamental liberties protected by
this Clause include most of the rights enumerated in the Bill of
Rights. See Duncanv. Louisiana , 391 U. S. 145 149 (1968).
In addition these liberties extend to certain personal choices
central to individual dignity and autonomy, including intimate
choices that define personal identity and beliefs. See, e.g. , Eisenstadtv. Baird , 405 U. S. 438, 453
(1972) ; Griswoldv. Connecticut , 381 U. S. 479 486
(1965).

															The identification and protection of fundamental rights is an
enduring part of the judicial duty to interpret the Constitution.
That responsibility, however, "has not been reduced to any
formula." Poev. Ullman , 367 U. S. 497, 542 (1961) (Harlan,
J., dissenting). Rather, it requires courts to exercise reasoned
judgment in identifying interests of the person so fundamental that
the State must accord them its respect. See ibid. That
process is guided by many of the same considerations relevant to
analysis of other constitutional provisions that set forth broad
principles rather than specific requirements. History and tradition
guide and discipline this inquiry but do not set its outer
boundaries. See Lawrence , supra , at 572. That
method respects our history and learns from it without allowing the
past alone to rule the present.

															The nature of injustice is that we may not always see it in our
own times. The generations that wrote and ratified the Bill of
Rights and the Fourteenth Amendment did not presume to know the
extent of freedom in all of its dimensions, and so they entrusted
to future generations a charter protecting the right of all persons
to enjoy liberty as we learn its meaning. When new insight reveals
discord between the Constitution's central protections and a
received legal stricture, a claim to liberty must be addressed.

															Applying these established tenets, the Court has long held the
right to marry is protected by the Constitution. In Lovingv.
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 Zablockiv.
Redhail , 434 U. S. 374, 384 (1978) , which held the right to
marry was burdened by a law prohibiting fathers who were behind on
child support from marrying. The Court again applied this principle
in Turnerv. 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. 632 640 (1974); Griswold , supra , at 486; Skinnerv. Oklahoma ex rel.
Williamson , 316 U. S. 535, 541 (1942) ; Meyerv.
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, has made assumptions defined by
the world and time of which it is a part. This was evident in Bakerv. Nelson , 409 U. S. 810 , a one-line summary
decision issued in 1972, holding the exclusion of same-sex couples
from marriage did not present a substantial federal question.

															Still, there are other, more instructive precedents. This
Court's cases have expressed constitutional principles of broader
reach. In defining the right to marry these cases have identified
essential attributes of that right based in history, tradition, and
other constitutional liberties 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-sex couples may
exercise the right to marry. The four principles and traditions to
be discussed demonstrate that the reasons marriage is fundamental
under the Constitution apply with equal force to same-sex
couples.

															A first premise of the Court's relevant precedents is that the
right to personal choice regarding marriage is inherent in the
concept of individual autonomy. This abiding connection between
marriage and liberty is why Loving invalidated interracial
marriage bans under the Due Process Clause. See 388 U. S., at 12;
see also Zablocki , supra , at 384 (observing Loving held "the right to marry is of 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 be contradictory "to recognize a right
of privacy with respect to other matters of family life and not
with respect to the 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 has explained, because "it
fulfils yearnings for security, safe haven, and connection that
express our common human ity, civil marriage is an esteemed
institution, and the decision whether and whom to marry is among
life's momentous acts of self-definition." Goodridge , 440
Mass., at 322, 798 N. E. 2d, at 955.

															The nature of marriage is that, through its enduring bond, two
persons together can find other freedoms, such as expression,
intimacy, and spirituality. This is true for all persons, whatever
their sexual orientation. See 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 a two-person
union unlike any other in its importance to the committed
individuals. This point was central to Griswold v. Connecticut , which held the Constitution protects the
right of married couples to use contraception. 381 U. S., at 485.
Suggesting that marriage is a right "older than the Bill of
Rights," Griswold described marriage this way:

															"Marriage is a coming together for better or for worse,
hopefully enduring, and intimate to the degree of being sacred. It
is an association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral loyalty, not
commercial or social projects. Yet it is an association for as
noble a purpose as any involved in our prior decisions. " Id. , at 486.

															And in Turner , the Court again acknowledged the
intimate association protected by this right, holding prisoners
could 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 the universal fear that a
lonely person might call out only to find no one there. It offers
the hope of companionship and understanding and assurance that
while both still live there will be someone to care for the
other.

															As this Court held in Lawrence , same-sex couples have
the same right as opposite-sex couples to enjoy intimate
association. Lawrence invalidated laws that made same-sex
intimacy a criminal act. And it acknowledged that "[w]hen sexuality
finds overt expression in intimate conduct with another person, the
conduct can be but one element in a personal bond that is more
enduring." 539 U. S., at 567. But while Lawrence confirmed
a dimension of freedom that allows individuals to engage in
intimate association without criminal liability, it does not follow
that freedom stops there. Outlaw to outcast may be a step forward,
but it does not achieve the full promise of liberty.

															A third basis for protecting the right to marry is that it
safeguards children and families and thus draws meaning from
related rights of childrearing, procreation, and education. See Piercev. Society of Sisters , 268 U. S. 510 (1925) ; Meyer , 262 U. S., at 399. The Court has recognized these
connections by describing the varied rights as a unified whole:
"[T]he right to 'marry, establish a home and bring up children' is
a central part of the liberty protected by the Due Process Clause." Zablocki , 434 U. S., at 384 (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 their own family and its concord with other families in their
community and in their daily lives." Windsor , supra , at ___ (slip op., at 23). Marriage also affords the
permanency and stability important to children's best interests.
See Brief for Scholars of the Constitutional Rights of Children as Amici Curiae 22 27.

															As all parties agree, many same-sex couples provide loving and
nurturing homes to their children, whether biological or adopted.
And hundreds of thousands of 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
powerful confirmation 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 their families 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 here thus harm and humiliate the children of same-sex
couples. See Windsor , supra , at ___ (slip op., at
23).

															That is not to say the right to marry is less meaningful for
those who do not or cannot have children. An ability, desire, or
promise to procreate is not and has not been a prerequisite for a
valid marriage in any State. In light of precedent protecting the
right of a married couple not to procreate, it cannot be said the
Court or the States have conditioned the right to marry on the
capacity or 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's
traditions make clear that marriage is a keystone of our social
order. Alexis de Tocqueville recognized this truth on his travels
through the United States almost two 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 Democracy in America 309 (H. Reeve transl., rev. ed. 1990).

															In Maynardv. Hill , 125 U. S. 190, 211 (1888) , the
Court echoed de Tocqueville, explaining that marriage is "the
foundation of the family and of society, without which there would
be neither civilization nor progress." Marriage, the Maynard Court said, has long been " 'a great public
institution, giving character to our whole civil polity.' " Id. , at 213. This idea has been reiterated even as the
institution has evolved in substantial ways over time, superseding
rules related to parental consent, gender, and race once thought by
many to be essential. See generally N. Cott, Public Vows. Marriage
remains a building block of our national community.

															For that reason, just as a couple vows to support each other, so
does society pledge to support the couple, offering symbolic
recognition and material benefits to protect and nourish the union.
Indeed, while the States are in general free to vary the benefits
they confer on all married couples, they have throughout our
history made marriage the 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; birth and
death certificates; professional ethics rules; campaign finance
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 center of so many facets of the legal and social
order.

															There is no difference between same- and opposite-sex couples
with respect to this principle. Yet by virtue of their exclusion
from that institution, same-sex couples are denied the
constellation of benefits that the States have linked to marriage.
This harm results in more than just material burdens. Same-sex
couples are consigned to an instability many opposite-sex couples
would deem intolerable in their own lives. As the State itself
makes marriage all the more precious by the significance it
attaches to it, exclusion from that status has the effect of
teaching that gays and lesbians are unequal in important respects.
It demeans gays and lesbians for the State to lock them out of a
central institution of the Nation's society. Same-sex couples, too,
may aspire to the transcendent purposes of marriage and seek
fulfillment in its highest meaning.

															The limitation of marriage to opposite-sex couples may long have
seemed natural and just, but its inconsistency with the central
meaning of the fundamental right to marry is now manifest. With
that knowledge must come the recognition that laws excluding
same-sex couples from the marriage right impose stigma and injury
of the kind prohibited by our basic charter.

															Objecting that this does not reflect an appropriate framing of
the issue, the respondents refer to Washingtonv.
Glucksberg , 521 U. S. 702, 721 (1997) , which called for a "
'careful description' " of fundamental rights. They assert the
petitioners do not seek to exercise the right to marry but rather a
new and nonexistent "right to same-sex 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 asserted right there involved (physician-assisted suicide), it
is inconsistent with the approach this Court has used in discussing
other fundamental rights, including marriage and intimacy. Loving did not ask about a "right to interracial
marriage"; Turner did not ask about a "right of inmates to
marry"; and Zablocki did not ask about a "right of fathers
with unpaid child support duties to marry." Rather, each case
inquired about the right to marry in its comprehensive sense,
asking if there was a sufficient justification for excluding the
relevant class from the right. See also Glucksberg , 521 U.
S., at 752 773 (Souter, J., concurring in judgment); id. ,
at 789 792 (Breyer, J., concurring in judgments).

															That principle applies here. If rights were defined by who
exercised them in the past, then received practices could serve as
their own continued justification and new groups could not invoke
rights once denied. This Court has rejected that approach, both
with respect to the right to marry and the rights of gays and
lesbians. See Loving 388 U. S., at 12; Lawrence ,
539 U. S., at 566 567.

															The right to marry is fundamental as a matter of history and
tradition, but rights come not from ancient sources alone. They
rise, too, from a better informed understanding of how
constitutional imperatives define a liberty that remains urgent in
our own era. Many who deem same-sex marriage to be wrong reach that
conclusion based on decent and honorable religious or philosophical
premises, and neither they nor their beliefs are disparaged here.
But when that sincere, personal opposition becomes enacted law and
public policy, the necessary consequence is to put the imprimatur
of the State itself on an exclusion that soon demeans or
stigmatizes those whose own liberty is then denied. Under the
Constitution, same-sex couples seek in marriage the same legal
treatment as opposite-sex couples, and it would disparage their
choices and diminish their personhood to deny them this right.

															The right of same-sex couples to marry that is part of the
liberty promised by the Fourteenth Amendment is derived, too, from
that Amendment's guarantee of the equal protection of the laws. The
Due Process Clause and the Equal Protection Clause are connected in
a profound way, though they set forth independent principles.
Rights implicit in liberty and rights secured by equal protection
may rest on different precepts and are not always co-extensive, yet
in some instances each may be instructive as to the meaning and
reach of the other. In any 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); Beardenv. 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 first declared the prohibition
invalid because of its un-equal treatment of interracial couples.
It stated: "There can be no doubt that restricting the freedom to
marry solely because of racial classifications violates the central
meaning of the Equal Protection Clause." 388 U. S., at 12. With
this link to equal protection the Court proceeded to hold the
prohibition offended central precepts of liberty: "To deny this
fundamental freedom on so unsupportable a basis as the racial
classifications embodied in these statutes, classifications so
directly subversive of the principle of equality at the heart of
the Fourteenth Amendment, is surely to deprive all the State's
citizens of liberty without due process of law." Ibid. The
reasons why marriage is a fundamental right became more clear and
compelling from a full awareness and understanding of the hurt that
resulted from laws barring interracial unions.

															The synergy between the two protections is illustrated further
in Zablocki . There the Court invoked the Equal Protection
Clause as its basis for invalidating the challenged law, which, as
already noted, barred fathers who were behind on child-support
payments from marrying without judicial approval. The equal
protection analysis depended in central part on the Court's holding
that the law burdened a right "of fundamental importance." 434 U.
S., at 383. It was the essential nature of the marriage right,
discussed at length in Zablocki , see id. , at 383
387, that made apparent the law's incompatibility with requirements
of equality. Each concept liberty and equal protection leads to a
stronger understanding of the other.

															Indeed, in interpreting the Equal Protection Clause, the Court
has recognized that new insights and societal understandings can
reveal unjustified inequality within our most fundamental
institutions that once passed unnoticed and unchallenged. To take
but one period, this occurred with respect to marriage in the
1970's and 1980's. Notwithstanding the gradual erosion of the
doctrine of coverture, see supra , at 6, invidious
sex-based classifications in marriage remained common through the
mid-20th century. See App. to Brief for Appellant in Reedv.
Reed , O. T. 1971, No. 70 4, pp. 69 88 (an extensive reference
to laws extant as of 1971 treating women as unequal to men in
marriage). These classifications denied the equal dignity of men
and women. One State's law, for example, provided in 1971 that "the
husband is the head of the family and the wife is subject to him;
her legal civil existence is merged in the husband, except so far
as the law recognizes her separately, either for her own
protection, or for her benefit." Ga. Code Ann. 53 501 (1935).
Responding to a new awareness, the Court invoked equal protection
principles to invalidate laws imposing sex-based inequality on
marriage. See, e.g., Kirchbergv. Feenstra , 450 U. S. 455
(1981) ; Wenglerv. Druggists Mut. Ins. Co. , 446 U. S. 142
(1980) ; Califanov. Westcott , 443 U. S. 76 (1979) ; Orrv. Orr , 440 U. S. 268 (1979) ; Califanov.
Goldfarb , 430 U. S. 199 (1977) (plurality opinion); Weinbergerv. Wiesenfeld , 420 U. S. 636 (1975) ; Frontierov. Richardson , 411 U. S. 677 (1973) . Like Loving and Zablocki , these precedents show the
Equal Protection Clause can help to identify and correct
inequalities in the institution of marriage, vindicating precepts
of liberty and equality under the Constitution.

															Other cases confirm this relation between liberty and equality.
In M. L. B.v. S. L. J. , the Court invalidated under due
process and equal protection principles a statute requiring
indigent mothers to pay a fee in order to appeal the termination of
their parental rights. See 519 U. S., at 119 124. In Eisenstadtv. 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 Skinnerv. Oklahoma ex rel. Williamson , the
Court invalidated under both principles a law that allowed
sterilization of habitual criminals. See 316 U. S., at 538 543.

															In Lawrence the Court acknowledged the interlocking
nature of these constitutional safeguards in the context of the
legal treatment of gays and lesbians. See 539 U. S., at 575.
Although Lawrence elaborated its holding under the Due
Process Clause, it acknowledged, and sought to remedy, the
continuing inequality that resulted from laws making intimacy in
the lives of gays and lesbians a crime against the State. See ibid. Lawrence therefore drew upon principles of
liberty and equality to define and protect the rights of gays and
lesbians, holding the State "cannot demean their existence or
control their destiny by making their private sexual conduct a
crime." Id. , at 578.

															This dynamic also applies to same-sex marriage. It is now clear
that the challenged laws burden the liberty of same-sex couples,
and it must be further acknowledged that they abridge central
precepts of equality. Here the marriage laws enforced by the
respondents are in essence unequal: same-sex couples are denied all
the benefits afforded to opposite-sex couples and are barred from
exercising a fundamental right. Especially against a long history
of disapproval of their relationships, this denial to same-sex
couples of the right to marry works a grave and continuing harm.
The imposition of this disability on gays and lesbians serves to
disrespect and subordinate them. And the Equal Protection Clause,
like the Due Process Clause, prohibits this unjustified
infringement of the fundamental right to marry. See, e.g. , Zablocki , supra , at 383 388; Skinner ,
316 U. S., at 541.

															These considerations lead to the conclusion that the right to
marry is a fundamental right inherent in the liberty of the person,
and under the Due Process and Equal Protection Clauses of the
Fourteenth Amendment couples of the same-sex may not be deprived of
that right and that liberty. The Court now holds that same-sex
couples may exercise the fundamental right to marry. No longer may
this liberty be denied to them. Bakerv. 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 been insufficient democratic
discourse before deciding an issue so basic as the definition of
marriage. In its ruling on the cases now before this Court, the
majority opinion for the Court of Appeals made a cogent argument
that it would be appropriate for the respondents' States to await
further public discussion and political measures before licensing
same-sex marriages. See DeBoer , 772 F. 3d, at 409.

															Yet there has been far more deliberation than this argument
acknowledges. There have been referenda, legislative debates, and
grassroots campaigns, as well as countless studies, papers, books,
and other popular and scholarly writings. There has been extensive
litigation in state and federal courts. See Appendix A, infra . Judicial opinions addressing the issue have been
informed by the contentions of parties and counsel, which, in turn,
reflect the more general, societal discussion of same-sex marriage
and its meaning that has occurred over the past decades. As more
than 100 amici make clear in their filings, many of the
central institutions in American life state and local governments,
the military, large and small businesses, labor unions, religious
organizations, law enforcement, civic groups, professional
organizations, and universities have devoted substantial attention
to the question. This has led to an enhanced understanding of the
issue an understanding reflected in the arguments now presented 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 Schuettev. BAMN , 572 U. S. ___ (2014), noting the "right
of citizens to debate so they can learn and decide and then,
through the political process, act in concert to try to shape the
course of their own times." Id. , at ___ ___ (slip op., at
15 16). Indeed, it is most often through democracy that liberty is
preserved and protected in our lives. But as Schuette also
said, "[t]he freedom secured by the Constitution consists, in one
of its essential dimensions, of the right of the individual not to
be injured by the unlawful exercise of governmental power." Id. , at ___ (slip op., at 15). Thus, when the rights of
persons are violated, "the Constitution requires redress by the
courts," notwithstanding the more general value of democratic
decisionmaking. Id. , at ___ (slip op., at 17). This holds
true even when protecting individual rights affects issues of the
utmost importance and sensitivity.

															The dynamic of our constitutional system is that 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 own direct, personal stake in our basic
charter. An individual can invoke a right to constitutional
protection when he or she is harmed, even if the broader public
disagrees and even if the legislature refuses to act. The idea of
the Constitution "was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the
reach of majorities and officials and to establish them as legal
principles to be applied by the courts." West 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. 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 a law criminalizing
same-sex intimacy. See 478 U. S., at 186, 190 195. That approach
might have been viewed as a cautious endorsement of the democratic
process, which had only just begun to consider the rights of gays
and lesbians. Yet, in effect, Bowers upheld state action
that denied gays and lesbians a fundamental right and caused them
pain and humiliation. As evidenced by the dissents in that case,
the facts and principles necessary to a correct holding were known
to the Bowers Court. See id. , at 199 (Blackmun,
J., joined by Brennan, Marshall, and Stevens, JJ., dissenting); id. , at 214 (Stevens, J., joined by Brennan and Marshall,
JJ., dissenting). That is why Lawrence held Bowers was "not correct when it was decided." 539 U. S.,
at 578. Although Bowers was eventually repudiated in Lawrence , men and women were harmed in the interim, and
the substantial effects of these injuries no doubt lingered long
after Bowers was overruled. Dignitary wounds cannot always
be healed with the stroke of a pen.

															A ruling against same-sex couples would have the same effect
and, like Bowers , would be unjustified under the
Fourteenth Amendment. The petitioners' stories make clear the
urgency of the issue they present to the Court. James Obergefell
now asks whether Ohio can erase his marriage to John Arthur for all
time. April DeBoer and Jayne Rowse now ask whether Michigan may
continue to deny them the certainty and stability all mothers
desire to protect their children, and for them and their children
the childhood years will pass all too soon. Ijpe DeKoe and Thomas
Kostura now ask whether Tennessee can deny to one who has served
this Nation the basic dignity of recognizing his New York marriage.
Properly presented with the petitioners' cases, the Court has a
duty to address these claims and answer these questions.

															Indeed, faced with a disagreement among the Courts of Appeals a
disagreement that caused impermissible geographic variation in the
meaning of federal law the Court granted review to determine
whether same-sex couples may exercise the right to marry. Were the
Court to uphold the challenged laws as constitutional, it would
teach the Nation that these laws are in accord with our society's
most basic compact. Were the Court to stay its hand to allow
slower, case-by-case determination of the required availability of
specific public benefits to same-sex couples, it still would deny
gays and lesbians many rights and responsibilities intertwined with
marriage.

															The respondents also argue allowing same-sex couples to wed will
harm marriage as an institution by leading to fewer opposite-sex
marriages. This may occur, the respondents contend, because
licensing same-sex marriage severs the connection between natural
procreation and marriage. 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 on many 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 Kitchenv.
Herbert , 755 F. 3d 1193, 1223 (CA1Add hyphens between
digits014) ("[I]t is wholly illogical to believe that state
recognition of the love and commitment between same-sex couples
will alter the most intimate and personal decisions of opposite-sex
couples"). The respondents have not shown a foundation for the
conclusion that allowing same-sex marriage will cause the harmful
outcomes they describe. Indeed, with respect to this asserted basis
for excluding same-sex couples from the right to marry, it is
appropriate to observe these cases involve only the rights of two
consenting adults whose marriages would pose no risk of harm to
themselves or third parties.

															Finally, it must be emphasized that religions, and those who
adhere to religious doctrines, may continue to advocate with
utmost, sincere conviction that, by divine precepts, same-sex
marriage should not be condoned. The First Amendment ensures that
religious organizations and persons are given proper protection as
they seek to teach the principles that are so fulfilling and so
central to their lives and faiths, and to their own deep
aspirations to continue the family structure they have long
revered. The same is true of those who oppose same-sex marriage for
other reasons. In turn, those who believe allowing same-sex
marriage is proper or indeed essential, whether as a matter of
religious conviction or secular belief, may engage those who
disagree with their view in an open and searching debate. The
Constitution, however, does not permit the State to bar same-sex
couples from marriage on the same terms as accorded to couples of
the opposite sex.

															V

															These cases also present the question whether the Constitution
requires States to recognize same-sex marriages validly performed
out of State. As made clear by the case of Obergefell and Arthur,
and by that of DeKoe and Kostura, the recognition bans inflict
substantial and continuing harm 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. Williamsv.
North Carolina , 317 U. S. 287, 299 (1942) (internal quotation
marks omitted). Leaving the current state of affairs in place would
maintain and promote instability and uncertainty. For some couples,
even an ordinary drive into a neighboring State to visit family or
friends risks causing severe hardship in the event of a spouse's
hospitalization while across state lines. In light of the fact that
many States already allow same-sex marriage and hundreds of
thousands of these marriages already have occurred the disruption
caused by the recognition bans is significant and ever-growing.

															As counsel for the respondents acknowledged at argument, if
States are required by the Constitution to issue marriage 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 performed in 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 do respect
it, respect it so deeply that they seek to find its fulfillment 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.

															APPENDICES

															A

															State and Federal Judicial Decisions

															Addressing Same-Sex Marriage United States Courts of Appeals Decisions Adamsv. Howerton , 673 F. 2d 1036 (CAAdd hyphens between
digits982) Smeltv. County of Orange , 447 F. 3d 673 (CAAdd hyphens
between digits006) Citizens for Equal Protectionv. Bruning , 455 F. 3d 859
(CAAdd hyphens between digits006) Windsorv. United States , 699 F. 3d 169 (CAAdd hyphens
between digits012) Massachusettsv. Department of Health and Human
Services , 682 F. 3d 1 (CAAdd hyphens between digits012) Perryv. Brown , 671 F. 3d 1052 (CAAdd hyphens between
digits012) Lattav. Otter , 771 F. 3d 456 (CAAdd hyphens between
digits014) Baskinv. Bogan , 766 F. 3d 648 (CAAdd hyphens between
digits014) Bishopv. Smith , 760 F. 3d 1070 (CA1Add hyphens between
digits014) Bosticv. Schaefer , 760 F. 3d 352 (CAAdd hyphens between
digits014) Kitchenv. Herbert , 755 F. 3d 1193 (CA1Add hyphens
between digits014) DeBoerv. Snyder , 772 F. 3d 388 (CAAdd hyphens between
digits014) Lattav. Otter , 779 F. 3d 902 (CAAdd hyphens between
digits015) (O'Scannlain, J., dissenting from the denial of
rehearing en banc) United States District Court Decisions Adamsv. 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 Protectionv. Bruning , 368 F. Supp.
2d 980 (Neb. 2005) Wilsonv. Ake , 354 F. Supp. 2d 1298 (MD Fla.
2005) Smeltv. County of Orange , 374 F. Supp. 2d 861 (CD Cal.
2005) Bishopv. Oklahoma ex rel. Edmondson , 447 F. Supp. 2d
1239 (ND Okla. 2006) Massachusettsv. Department of Health and Human
Services , 698 F. Supp. 2d 234 (Mass. 2010) Gillv. Office of Personnel Management , 699 F. Supp. 2d
374 (Mass. 2010) Perryv. Schwarzenegger , 704 F. Supp. 2d 921 (ND
Cal. 2010) Dragovichv. 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) Dragovichv. Department of Treasury , 872 F. Supp. 2d 944
(ND Cal. 2012) Windsorv. United States , 833 F. Supp. 2d 394 (SDNY
2012) Pedersenv. Office of Personnel Management , 881 F. Supp.
2d 294 (Conn. 2012) Jacksonv. Abercrombie , 884 F. Supp. 2d 1065 (Haw.
2012) Sevcikv. Sandoval , 911 F. Supp. 2d 996 (Nev. 2012) Merrittv. Attorney General , 2013 WL 6044329 (MD
La., Nov. 14, 2013) Grayv. Orr , 4 F. Supp. 3d 984 (ND Ill.
2013) Leev. Orr , 2013 WL 6490577 (ND Ill., Dec. 10, 2013) Kitchenv. Herbert , 961 F. Supp. 2d 1181 (Utah 2013) Obergefellv. Wymyslo , 962 F. Supp. 2d 968 (SD Ohio
2013) Bishopv. United States ex rel. Holder , 962 F. Supp. 2d
1252 (ND Okla. 2014) Bourkev. Beshear , 996 F. Supp. 2d 542 (WD Ky. 2014) Leev. Orr , 2014 WL 683680 (ND Ill., Feb. 21, 2014) Bosticv. Rainey , 970 F. Supp. 2d 456 (ED Va. 2014) De Leonv. Perry , 975 F. Supp. 2d 632 (WD Tex.
2014) Tancov. Haslam , 7 F. Supp. 3d 759 (MD Tenn. 2014) DeBoerv. Snyder , 973 F. Supp. 2d 757 (ED Mich.
2014) Henryv. Himes , 14 F. Supp. 3d 1036 (SD Ohio 2014) Lattav. Otter , 19 F. Supp. 3d 1054 (Idaho 2014) Geigerv. Kitzhaber , 994 F. Supp. 2d 1128 (Ore.
2014) Evansv. Utah , 21 F. Supp. 3d 1192 (Utah 2014) Whitewoodv. Wolf , 992 F. Supp. 2d 410 (MD Pa. 2014) Wolfv. Walker , 986 F. Supp. 2d 982 (WD Wis. 2014) Baskinv. Bogan , 12 F. Supp. 3d 1144 (SD Ind. 2014) Lovev. Beshear , 989 F. Supp. 2d 536 (WD Ky. 2014) Burnsv. Hickenlooper , 2014 WL 3634834 (Colo., July 23,
2014) Bowlingv. Pence , 39 F. Supp. 3d 1025 (SD Ind. 2014) Brennerv. Scott , 999 F. Supp. 2d 1278 (ND Fla.
2014) Robicheauxv. Caldwell , 2 F. Supp. 3d 910 (ED La.
2014) General Synod of the United Church of Christv.
Resinger , 12 F. Supp. 3d 790 (WDNC 2014) Hambyv. Parnell , 56 F. Supp. 3d 1056 (Alaska 2014) Fisher-Bornev. Smith , 14 F. Supp. 3d 695 (MDNC
2014) Majorsv. Horne , 14 F. Supp. 3d 1313 (Ariz. 2014) Connollyv. Jeanes , ___ F. Supp. 3d ___, 2014 WL 5320642
(Ariz., Oct. 17, 2014) Guzzov. Mead , 2014 WL 5317797 (Wyo., Oct. 17, 2014) Conde-Vidalv. Garcia-Padilla , 54 F. Supp. 3d 157 (PR
2014) Mariev. Moser , ___ F. Supp. 3d ___, 2014 WL 5598128
(Kan., Nov. 4, 2014) Lawsonv. Kelly , 58 F. Supp. 3d 923 (WD Mo. 2014) McGeev. Cole , ___ F. Supp. 3d ___, 2014 WL 5802665 (SD
W. Va., Nov. 7, 2014) Condonv. Haley , 21 F. Supp. 3d 572 (S. C. 2014) Bradacsv. Haley , 58 F. Supp. 3d 514 (S. C. 2014) Rolandov. Fox , 23 F. Supp. 3d 1227 (Mont. 2014) Jerniganv. Crane , ___ F. Supp. 3d ___, 2014 WL 6685391
(ED Ark., Nov. 25, 2014) Campaign for Southern Equalityv. Bryant , ___ F. Supp.
3d ___, 2014 WL 6680570 (SD Miss., Nov. 25, 2014) Innissv. Aderhold , ___ F. Supp. 3d ___, 2015 WL 300593
(ND Ga., Jan. 8, 2015) Rosenbrahnv. Daugaard , 61 F. Supp. 3d 862 (S. D.,
2015) Casparv. Snyder , ___ F. Supp. 3d ___, 2015 WL 224741
(ED Mich., Jan. 15, 2015) Searceyv. Strange , 2015 U. S. Dist. LEXIS 7776 (SD
Ala., Jan. 23, 2015) Strawserv. Strange , 44 F. Supp. 3d 1206 (SD Ala.
2015) Watersv. Ricketts , 48 F. Supp. 3d 1271 (Neb. 2015) State Highest Court Decisions Bakerv. Nelson , 291 Minn. 310, 191 N. W. 2d 185
(1971) Jonesv. Hallahan , 501 S. W. 2d 588 (Ky. 1973) Baehrv. Lewin , 74 Haw. 530, 852 P. 2d 44 (1993) Deanv. District of Columbia , 653 A. 2d 307 (D. C.
1995) Bakerv. State , 170 Vt. 194, 744 A. 2d 864 (1999) Brausev. State , 21 P. 3d 357 (Alaska 2001)
(ripeness) Goodridgev. 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) Liv. State , 338 Or. 376, 110 P. 3d 91 (2005) Cote-Whitacrev. Department of Public Health ,446 Mass.
350, 844 N. E. 2d 623 (2006) Lewisv. Harris , 188 N. J. 415, 908 A. 2d 196 (2006) Andersenv. King County , 158 Wash. 2d 1, 138 P. 3d 963
(2006) Hernandezv. Robles , 7 N. Y. 3d 338, 855 N. E. 2d 1
(2006) Conawayv. Deane , 401 Md. 219, 932 A. 2d 571 (2007) In re Marriage Cases , 43 Cal. 4th 757, 183 P. 3d 384
(2008) Kerriganv. Commissioner of Public Health , 289 Conn.
135, 957 A. 2d 407 (2008) Straussv. Horton , 46 Cal. 4th 364, 207 P. 3d 48
(2009) Varnumv. Brien , 763 N. W. 2d 862 (Iowa 2009) Griegov. Oliver , 2014 NMSC 003, ___ N. M. ___, 316 P.
3d 865 (2013) Garden State Equalityv. 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)

															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. 9

															2013 Minn Laws p. 404

															2009 N. H. Laws p. 60

															2011 N. Y Laws p. 749

															2013 R. I. Laws p. 7

															2009 Vt. Acts & Resolves p. 33

															2012 Wash. Sess. Laws p. 199 Judicial Decisions Goodridgev. Department of Public Health , 440 Mass. 309,
798 N. E. 2d 941 (2003) Kerriganv. Commissioner of Public Health , 289 Conn.
135, 957 A. 2d 407 (2008) Varnumv. Brien , 763 N. W. 2d 862 (Iowa 2009) Griegov. Oliver , 2014 NMSC 003, ___ N. M. ___, 316 P.
3d 865 (2013) Garden State Equalityv. Dow , 216 N. J. 314, 79 A. 3d
1036 (2013) SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 14–556, 14-562, 14-571 and 14–574

															_________________

															JAMES OBERGEFELL, et al.,
PETITIONERS

															14–556 v. RICHARD HODGES, DIRECTOR, OHIO
DEPARTMENT OF HEALTH, et al.;

															VALERIA TANCO, et al.,
PETITIONERS

															14–562 v. BILL HASLAM, GOVERNOR OF TENNESSEE,
et al.;

															APRIL DeBOER, et al.,
PETITIONERS

															14–571 v. RICK SNYDER, GOVERNOR OF MICHIGAN,
et al.; AND

															GREGORY BOURKE, et al.,
PETITIONERS

															14–574 v. STEVE BESHEAR, GOVERNOR OF KENTUCKY

															on writs of certiorari to the united states
court of appeals for the sixth circuit

															[June 26, 2015]

															Chief Justice Roberts, with whom Justice
Scalia and Justice Thomas join, dissenting.

															Petitioners make strong arguments rooted in
social policy and considerations of fairness. They contend that
same-sex couples should be allowed to affirm their love and
commitment through marriage, just like opposite-sex couples. That
position has undeniable appeal; over the past six years, voters and
legislators in eleven States and the District of Columbia have
revised their laws to allow marriage between two people of the same
sex.

															But this Court is not a legislature. Whether
same-sex marriage is a good idea should be of no concern to us.
Under the Constitution, judges have power to say what the law is,
not what it should be. The people who ratified the Constitution
authorized courts to exercise “neither force nor will but merely
judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A.
Hamilton) (capitalization altered).

															Although the policy arguments for extending
marriage to same-sex couples may be compelling, the legal arguments
for requiring such an extension are not. The fundamental right to
marry does not include a right to make a State change its
definition of marriage. And a State’s decision to maintain the
meaning of marriage that has persisted in every culture throughout
human history can hardly be called irrational. In short, our
Constitution does not enact any one theory of marriage. The people
of a State are free to expand marriage to include same-sex couples,
or to retain the historic definition.

															Today, however, the Court takes the
extraordinary step of ordering every State to license and recognize
same-sex marriage. Many people will rejoice at this decision, and I
begrudge none their celebration. But for those who believe in a
government of laws, not of men, the majority’s approach is deeply
disheartening. Supporters of same-sex marriage have achieved
considerable success persuading their fellow citizens—through the
democratic process—to adopt their view. That ends today. Five
lawyers have closed the debate and enacted their own vision of
marriage as a matter of constitutional law. Stealing this issue
from the people will for many cast a cloud over same-sex marriage,
making a dramatic social change that much more difficult to
accept.

															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
Carthaginians 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 with the wisdom or policy of
legislation.” Id. , at 69 (Harlan, J., dissenting). The
majority today neglects that restrained conception of the judicial
role. It seizes for itself a 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
neutral principles 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 their elected representatives, or with
five lawyers who happen to hold commissions authorizing them to
resolve legal disputes according to law. The Constitution leaves no
doubt about the answer.

															I

															Petitioners and their amici base their
arguments on the “right to marry” and the imperative of “marriage
equality.” There is no serious dispute that, under our precedents,
the Constitution protects a right to marry and requires States to
apply their marriage laws equally. The real question in these cases
is what constitutes “marriage,” or—more precisely— who
decides what constitutes “marriage”?

															The majority largely ignores these questions,
relegating ages of human experience with marriage to a paragraph or
two. Even if history and precedent are not “the end” of these
cases, ante , at 4, I would not “sweep away what has so long
been settled” without showing greater respect for all that preceded
us. Town of Greece v. Galloway , 572 U. S. ___,
___ (2014) (slip op., at 8).

															A

															As the majority acknowledges, marriage “has
existed for millennia and across civilizations.” Ante , at 3.
For all those millennia, across all those civilizations, “marriage”
referred to only one relationship: the union of a man and a woman.
See ante , at 4; Tr. of Oral Arg. on Question 1, p. 12
(petitioners conceding that they are not aware of any society that
permitted same-sex marriage before 2001). As the Court explained
two Terms ago, “until recent years, . . . marriage
between a man and a woman no doubt had been thought of by most
people as essential to the very definition of that term and to its
role and function throughout the history of civilization.” United States v. Windsor , 570 U. S. ___, ___
(2013) (slip op., at 13).

															This universal definition of marriage as the
union of a man and a woman is no historical coincidence. Marriage
did not come about as a result of a political movement, discovery,
disease, war, religious doctrine, or any other moving force of
world history—and certainly not as a result of a prehistoric
decision to exclude gays and lesbians. 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 so fundamental that they rarely require articulation. The human
race must procreate to survive. Procreation occurs through sexual
relations between a man and a woman. When sexual relations result
in the conception of a child, that child’s prospects are generally
better if the mother and father stay together rather than going
their separate ways. Therefore, for the good of children and
society, sexual relations that can lead to procreation should occur
only between a man and a woman committed to a lasting bond.

															Society has recognized that bond as marriage.
And by bestowing a respected status and material benefits on
married couples, society encourages men and women to conduct sexual
relations within marriage rather than without. As one prominent
scholar put it, “Marriage is a socially arranged solution for the
problem of getting people to stay together and care for children
that the mere desire for children, and the sex that makes children
possible, does not solve.” J. Q. Wilson, The Marriage Problem 41
(2002).

															This singular understanding of marriage has
prevailed in the United States throughout our history. The majority
accepts that at “the time of the Nation’s founding [marriage] was
understood to be a voluntary contract between a man and a woman.” Ante , at 6. Early Americans drew heavily on legal scholars
like William Blackstone, who regarded marriage between “husband and
wife” as one of the “great relations in private life,” and
philosophers like John Locke, who described marriage as “a
voluntary 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 “was a 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]he
whole subject of the domestic relations of husband and wife.” Windsor , 570 U. S., at ___ (slip op., at 17) (quoting In re Burrus , 136 U. S. 586 –594 (1890)). There is no
dispute that every State at the founding—and every State throughout
our history until a dozen years ago—defined marriage in the
traditional, biologically rooted way. The four States in these
cases are typical. Their laws, before and after statehood, have
treated marriage as the union of a man and a woman. See DeBoer v. Snyder , 772 F. 3d 388, 396–399 (CA6
2014). Even when state laws did not specify 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 the sexes,
. . . promoting domestic felicity, and . . .
securing the maintenance and education of children.” 1 An American
Dictionary of the English Language (1828). An influential
19th-century treatise defined marriage as “a civil status, existing
in one man and one woman legally united for life for those civil
and social purposes which are based in the distinction of sex.” J.
Bishop, Commentaries on the Law of Marriage and Divorce 25 (1852).
The first edition of Black’s Law Dictionary defined marriage as
“the civil status of one man and one woman united in law for life.”
Black’s Law Dictionary 756 (1891) (emphasis deleted). The
dictionary maintained essentially that same definition for the next
century.

															This Court’s precedents have repeatedly
described marriage in ways that are consistent only with its
traditional meaning. Early cases on the subject referred to
marriage 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 a procreative
component. Loving v. Virginia , 388 U. S. 1, 12
(1967) ; see Skinner v. Oklahoma ex rel. Williamson ,
316 U. S. 535, 541 (1942) . More recent cases have directly
connected the right to marry with the “right to procreate.” Zablocki v. Redhail , 434 U. S. 374, 386 (1978)
.

															As the majority notes, some aspects of marriage
have changed over time. Arranged marriages have largely given way
to pairings based on romantic love. States have replaced coverture,
the doctrine by which a married man and woman became a single legal
entity, with laws that respect each participant’s separate status.
Racial restrictions on marriage, which “arose as an incident to
slavery” to promote “White Supremacy,” were repealed by many States
and ultimately struck down by this Court. Loving , 388
U. S., at 6–7.

															The majority observes that these developments
“were not mere superficial changes” in marriage, but rather “worked
deep transformations in its structure.” Ante , at 6–7. They
did not, however, work any transformation in the core structure of
marriage as the union between a man and a woman. If you had asked a
person on the street how marriage was defined, no one would ever
have said, “Marriage is the union of a man and a woman, where the
woman is subject to coverture.” The majority may be right that the
“history of marriage is one of both continuity and change,” but the
core meaning of marriage has endured. Ante , at 6.

															B

															Shortly after this Court struck down racial
restrictions on marriage in Loving , a gay couple in
Minnesota sought a marriage license. They argued that the
Constitution required States to allow marriage between people of
the same sex for the same reasons that it requires States to allow
marriage between people of different races. The Minnesota Supreme
Court rejected their analogy to 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
that could be extended to such couples. Until recently, this new
view of marriage remained a minority position. After the
Massachusetts Supreme Judicial Court in 2003 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 shifted rapidly. In 2009, the legislatures of Vermont,
New Hampshire, and the District of Columbia became the first in the
Nation to enact laws that revised the definition of marriage to
include same-sex couples, while also providing accommodations for
religious believers. In 2011, the New York Legislature enacted a
similar law. In 2012, voters in Maine did the same, reversing the
result of a referendum just three years earlier in which they had
upheld the traditional definition of marriage.

															In all, voters and legislators in eleven States
and the District of Columbia have changed their definitions of
marriage to include same-sex couples. The highest courts of five
States have decreed that same result under their own Constitutions.
The remainder of the States retain the traditional definition of
marriage.

															Petitioners brought lawsuits contending that the
Due Process and Equal Protection Clauses of the Fourteenth
Amendment compel their States to license and recognize marriages
between same-sex couples. In a carefully reasoned decision, the
Court of Appeals acknowledged the democratic “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 removing the
issue from the place it has been since the founding: in the hands
of state voters.” 772 F. 3d, at 396, 403. That decision
interpreted the Constitution correctly, and I would affirm.

															II

															Petitioners first contend that the marriage
laws of their States violate the Due Process Clause. The Solicitor
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 majority nevertheless resolves
these cases for petitioners based almost entirely on the Due
Process Clause.

															The majority purports to identify four
“principles and traditions” in this Court’s due process precedents
that support a fundamental right for same-sex couples to marry. Ante , at 12. In reality, however, the majority’s 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 marry because it will be good for them and for
society. If I were a legislator, I would certainly consider that
view as a matter of social policy. But as a judge, I find the
majority’s position indefensible as a matter of constitutional
law.

															A

															Petitioners’ “fundamental right” claim falls
into the most sensitive category of constitutional adjudication.
Petitioners do not contend that their States’ marriage laws violate
an enumerated constitutional right, such as the freedom of
speech protected by the First Amendment. There is, after all, no
“Companionship and 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’s requirement that “liberty” may not be deprived without
“due process of law.”

															This Court has interpreted the Due Process
Clause to include a “substantive” component that protects certain
liberty interests against state deprivation “no matter what process
is provided.” Reno v. Flores , 507 U. S. 292, 302
(1993) . The theory is that some liberties are “so rooted in the
traditions and conscience of our people as to be ranked as
fundamental,” and therefore cannot be deprived without compelling
justification. Snyder v. Massachusetts , 291
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 precedents have accordingly
insisted that judges “exercise the utmost care” in identifying
implied fundamental rights, “lest the liberty protected by the Due
Process Clause be subtly transformed into the policy preferences of
the Members of this Court.” Washington v. Glucksberg ,
521 U. S. 702, 720 (1997) (internal quotation marks omitted);
see Kennedy, Unenumerated Rights and the Dictates of Judicial
Restraint 13 (1986) (Address at Stanford) (“One can conclude that
certain essential, or fundamental, rights should exist in any just
society. It does not follow that each of those essential rights is
one that we as judges can enforce under the written Constitution.
The Due Process Clause is not a guarantee of every right that
should inhere in an ideal system.”).

															The need for restraint in administering the
strong medicine of substantive due process is a lesson this Court
has learned the hard way. The Court first applied substantive due
process to strike down a statute in Dred Scott v. Sandford , 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 United States of his liberty or property,
merely because he came himself or brought his property into a
particular Territory of the United States . . . could
hardly be dignified with the name of due process of law.” Id., at 450. In a dissent that has outlasted the majority
opinion, Justice Curtis explained that when the “fixed rules which
govern the interpretation of laws [are] abandoned, and the
theoretical 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 of the Civil War and by constitutional amendment after
Appomattox, but its approach to the Due Process Clause reappeared.
In a series of early 20th-century cases, most prominently Lochner v. New York , this Court invalidated state
statutes that presented “meddlesome interferences with the rights
of the individual,” and “undue interference with liberty of person
and freedom of contract.” 198 U. S., at 60, 61. In Lochner itself, the Court struck down a New York law setting
maximum hours for bakery employees, because there was “in our
judgment, no reasonable foundation for holding this to be necessary
or appropriate as a health law.” Id., at 58.

															The dissenting Justices in Lochner explained that the New York law could be viewed as a reasonable
response to legislative concern about the health of bakery
employees, an issue on which there was at least “room for debate
and for an honest difference of opinion.” Id., at 72
(opinion of Harlan, J.). The majority’s contrary conclusion
required adopting as constitutional law “an economic theory which a
large part of the country does not entertain.” Id., at 75
(opinion of Holmes, J.). As Justice Holmes memorably put it, “The
Fourteenth Amendment does not enact Mr. 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 conclude our judgment upon the question whether
statutes embodying them conflict with the Constitution.” Id. , at 75–76.

															In the decades after Lochner , the Court
struck down nearly 200 laws as violations of individual liberty,
often over strong dissents contending that “[t]he criterion of
constitutionality is not whether we believe the law to be for the
public good.” Adkins v. Children’s Hospital of
D. C. , 261 U. S. 525, 570 (1923) (opinion of Holmes,
J.). By empowering judges to elevate their own policy judgments to
the status of constitutionally protected “liberty,” the Lochner line of cases left “no alternative to regarding the
court as a . . . legislative chamber.” L. Hand, The Bill
of Rights 42 (1958).

															Eventually, the Court recognized its error and
vowed not to repeat it. “The doctrine that . . . due
process 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 wisdom of
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 the doctrine of implied fundamental rights, and this
Court has not done so. But to avoid repeating Lochner ’s
error of converting personal preferences into constitutional
mandates, our modern substantive due process cases have stressed
the need for “judicial self-restraint.” Collins v. Harker
Heights , 503 U. S. 115, 125 (1992) . Our precedents have
required that implied fundamental rights be “objectively, 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
history 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 nearest to 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 –101 (2000)
(Kennedy, J., dissenting) (consulting “ ‘[o]ur Nation’s
history, legal traditions, and practices’ ” and concluding
that “[w]e owe it to the Nation’s domestic relations legal
structure . . . to proceed with caution” (quoting Glucksberg , 521 U. S., at 721)).

															Proper reliance on history and tradition of
course requires looking beyond the individual law being challenged,
so that every restriction on liberty does not supply its own
constitutional justification. The Court is right about that. Ante , at 18. But given the few “guideposts for responsible
decisionmaking in this unchartered area,” Collins , 503
U. S., at 125, “an approach grounded in history imposes limits
on the judiciary that are more meaningful than any based on [an]
abstract formula,” Moore , 431 U. S., at 504, n. 12
(plurality opinion). Expanding a right suddenly and dramatically is
likely to require tearing it up from its roots. Even a sincere
profession of “discipline” in identifying fundamental rights, ante , at 10–11, does not provide a meaningful constraint on
a judge, for “what he is really likely to be ‘discovering,’ whether
or not he is fully aware of it, are his own values,” J. Ely,
Democracy and Distrust 44 (1980). The only way to ensure restraint
in this delicate enterprise is “continual insistence upon respect
for the teachings of history, solid recognition of the basic values
that underlie our society, and wise appreciation of the great roles
[of] the doctrines of federalism and 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 is desirable and petitioners desire it. The opinion
describes the “transcendent importance” of marriage and repeatedly
insists that petitioners do not seek to “demean,” “devalue,”
“denigrate,” or “disrespect” the institution. Ante , at 3, 4,
6, 28. Nobody disputes those points. Indeed, the compelling
personal accounts of petitioners and others like them are likely a
primary reason why many Americans have changed their minds about
whether same-sex couples should be allowed to marry. As a matter of
constitutional law, however, the sincerity of petitioners’ wishes
is not relevant.

															When the majority turns to the law, it relies
primarily on precedents discussing the fundamental “right to
marry.” Turner v. Safley , 482 U. S. 78, 95
(1987) ; Zablocki , 434 U. S., at 383; see Loving , 388 U. S., at 12. These cases do not hold, of
course, that anyone who wants to get married has a constitutional
right to do so. They instead require a State to justify barriers to
marriage as that institution has always been understood. In Loving , the Court held that racial restrictions on the right
to marry lacked a compelling justification. In Zablocki ,
restrictions based on child support debts did not suffice. In Turner , restrictions based on status as a prisoner were
deemed impermissible.

															None of the laws at issue in those cases
purported to change the core definition of marriage as the union of
a man and a woman. The laws challenged in Zablocki and Turner did not define marriage as “the union of a man and a
woman, where neither party owes child support or is in
prison .” Nor did the interracial marriage ban at issue in Loving define marriage as “the union of a man and a woman of the same race .” See Tragen, Comment, Statutory
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 than integrating schools changed what a
school was. As the majority admits, the institution of “marriage”
discussed in every one of these cases “presumed a relationship
involving opposite-sex partners.” Ante , at 11.

															In short, the “right to marry” cases stand for
the important but limited proposition that particular restrictions
on access to marriage as traditionally defined violate due
process. These precedents say nothing at all about a right to make
a State change its definition of marriage, which is the right
petitioners actually seek here. See Windsor , 570 U. S.,
at ___ (Alito, J., dissenting) (slip op., at 8) (“What Windsor and
the United States seek . . . is not the protection of a
deeply rooted right but the recognition of a very new right.”).
Neither petitioners nor the majority cites a 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 to correspond 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 –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 the most
private of places, the home.” Id. , at 562, 567.

															Neither Lawrence nor any other precedent
in the privacy line of cases supports the right that petitioners
assert here. Unlike criminal laws banning contraceptives and
sodomy, the marriage laws at issue here involve no 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 families as they see fit. No one is
“condemned to live in loneliness” by the laws challenged in these
cases—no one. Ante , at 28. At the same time, the laws in no
way interfere with the “right to be let alone.”

															The majority also relies on Justice Harlan’s
influential dissenting opinion in Poe v. Ullman , 367
U. S. 497 (1961) . As the majority recounts, that opinion
states that “[d]ue process has not been reduced to any formula.” Id., at 542. But far from conferring the broad interpretive
discretion that the majority discerns, Justice Harlan’s opinion
makes clear that courts implying fundamental rights are not “free
to roam where unguided speculation might take them.” Ibid. They must instead have “regard to what history teaches” and
exercise not only “judgment” but “restraint.” Ibid. Of
particular relevance, Justice Harlan explained that “laws regarding
marriage which provide both when the sexual powers may be used and
the legal and societal context in which children are born and
brought up . . . form a pattern so deeply pressed into
the substance of our social life that any Constitutional doctrine
in this area must build upon that basis.” Id. , at 546.

															In sum, the privacy cases provide no support for
the majority’s position, because petitioners do not seek privacy.
Quite the opposite, they seek public recognition of their
relationships, along with corresponding government benefits. Our
cases have consistently refused to allow litigants to convert the
shield provided by constitutional liberties into a sword to demand
positive entitlements from the State. See DeShaney v. Winnebago County Dept. of Social Servs. , 489 U. S. 189,
196 (1989) ; San Antonio Independent School Dist. v. Rodriguez , 411 U. S. 1 –37 (1973); post , at 9–13
(Thomas, J., dissenting). Thus, although the right to privacy
recognized by our precedents certainly plays a role in protecting
the intimate conduct of same-sex couples, it provides no
affirmative right to redefine marriage and no basis for striking
down the laws at issue here.

															3

															Perhaps recognizing how little support it can
derive from precedent, the majority goes out of its way to jettison
the “careful” approach to implied fundamental rights taken by this
Court in Glucksberg . Ante , at 18 (quoting 521
U. S., at 721). It is revealing that the majority’s 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 majority of taking a careful approach.

															Ultimately, only one precedent offers any
support for the majority’s methodology: Lochner v. New
York , 198 U. S. 45 . The majority opens its opinion by
announcing petitioners’ right to “define and express their
identity.” Ante , at 1–2. The majority later explains that
“the right to personal choice regarding marriage is inherent in the
concept of individual autonomy.” Ante , at 12. This
freewheeling notion of individual autonomy echoes nothing so much
as “the general right of an individual to be free in his
person and in his power to contract in relation to his own
labor.” Lochner , 198 U. S., at 58 (emphasis added).

															To be fair, the majority does not suggest that
its 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 all who came before but has
become clear “as we learn [the] meaning” of liberty. Ante ,
at 10, 11 . The truth is that today’s decision rests on
nothing more than the majority’s own conviction that same-sex
couples should be allowed to marry because they want to, and that
“it would disparage their choices and diminish their personhood to
deny them this right.” Ante , at 19. Whatever force that
belief may have as a matter of moral philosophy, it has no more
basis in the Constitution than did the naked policy preferences
adopted in Lochner . See 198 U. S., at 61 (“We do not
believe in the soundness of the views which uphold this law,” which
“is an illegal interference with the rights of individuals
. . . to make contracts regarding labor upon such terms
as they may think best”).

															The majority recognizes that today’s cases do
not mark “the first time the Court has been asked to adopt a
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 debacle of the Lochner era.
Today, the majority casts caution aside and revives the grave
errors of that period.

															One immediate question invited by the majority’s
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. 14-4117
(CA10). Although the majority randomly inserts the adjective “two”
in various places, it offers no reason at all why the two-person
element of the core definition of marriage may be preserved while
the man-woman element may not. Indeed, from the standpoint of
history and tradition, a leap from opposite-sex marriage to
same-sex marriage is much greater than one from a two-person union
to plural unions, which have deep roots in some cultures around the
world. If the majority is willing to take the big leap, it is hard
to see how it can say no to the shorter one.

															It is striking how much of the majority’s
reasoning would apply with equal force to the claim of a
fundamental right to plural marriage. If “[t]here is dignity in the
bond between two men or two women who seek to marry and in their
autonomy to make such profound choices,” 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 children would otherwise “suffer the stigma of
knowing their families are somehow lesser,” ante , at 15, why
wouldn’t the same reasoning apply to a family of three or more
persons raising children? If not having the opportunity to marry
“serves to disrespect and subordinate” gay and lesbian couples, why
wouldn’t the same “imposition of this disability,” ante , at
22, serve to disrespect and subordinate people who find fulfillment
in polyamorous relationships? See Bennett, Polyamory: The Next
Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000
polyamorous families in the United States); Li, Married Lesbian
“Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014;
Otter, Three May Not Be a Crowd: The Case for a Constitutional
Right to Plural Marriage, 64 Emory L. J. 1977 (2015).

															I do not mean to equate marriage between
same-sex couples with plural marriages in all respects. There may
well be relevant differences that compel different legal analysis.
But if there are, petitioners have not pointed to any. When asked
about a plural marital union at oral argument, petitioners asserted
that a State “doesn’t have such an institution.” Tr. of Oral Arg.
on Question 2, p. 6. But that is exactly the point: the States at
issue here do not have an institution of same-sex marriage,
either.

															4

															Near the end of its opinion, the majority
offers perhaps the clearest insight into its decision. Expanding
marriage to include same-sex couples, the majority insists, would
“pose no risk of harm to themselves or third parties.” Ante ,
at 27. This argument again echoes Lochner , which relied on
its assessment that “we think that a law like the one before us
involves neither the safety, the morals nor the welfare of the
public, and that the interest of the public is not in the slightest
degree affected by such an act.” 198 U. S., at 57.

															Then and now, this assertion of the “harm
principle” sounds more in philosophy than law. The elevation of the
fullest individual self-realization over the constraints that
society has expressed in law may or may not be attractive moral
philosophy. But a Justice’s commission does not confer any special
moral, philosophical, or social insight sufficient to justify
imposing those perceptions on fellow citizens under the pretense of
“due process.” There is indeed a process due the people on issues
of this sort—the democratic process. Respecting that understanding
requires the Court to be guided by law, not any particular school
of social thought. As Judge Henry Friendly once put it, echoing
Justice Holmes’s dissent in Lochner , the Fourteenth
Amendment does not enact John Stuart Mill’s On Liberty any more
than it enacts Herbert Spencer’s Social Statics. See Randolph,
Before Roe v. Wade : Judge Friendly’s Draft Abortion
Opinion, 29 Harv. J. L. & Pub. Pol’y 1035, 1036–1037, 1058
(2006). And it certainly does not enact any one concept of
marriage.

															The majority’s understanding of due process lays
out a tantalizing vision of the future for Members of this Court:
If an unvarying social institution enduring over all of recorded
history cannot inhibit judicial policymaking, what can? But this
approach is dangerous for the rule of law. The purpose of insisting
that implied fundamental rights have roots in the history and
tradition of our people is to ensure that when unelected judges
strike down democratically enacted laws, they do so based on
something more than their own beliefs. The Court today not only
overlooks our country’s entire history and tradition but actively
repudiates it, preferring to live only in the heady days of the
here and now. I agree with the majority that the “nature of
injustice is that we may not always see it in our own times.” Ante , at 11. As petitioners put it, “times can blind.” Tr.
of Oral Arg. on Question 1, at 9, 10. But to blind yourself to
history is both prideful and unwise. “The past is never dead. It’s
not even past.” W. Faulkner, Requiem for a Nun 92 (1951).

															III

															In addition to their due process argument,
petitioners contend that the Equal Protection Clause requires their
States to license and recognize same-sex marriages. The majority
does not seriously engage with this claim. Its discussion is, quite
frankly, difficult to follow. The central point seems to be that
there is a “synergy between” the Equal Protection Clause and the
Due Process Clause, and that some precedents relying on one Clause
have also relied on the other. Ante , at 20. Absent from this
portion of the opinion, however, is anything resembling our usual
framework for deciding equal protection cases. It is 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 the goals it is pursuing.” G. Stone, L.
Seidman, C. Sunstein, M. Tushnet, & P. Karlan, Constitutional
Law 453 (7th ed. 2013). The majority’s approach today is
different:

															“Rights implicit in liberty and rights
secured by equal protection may rest on different precepts and are
not always co-extensive, yet in some instances each may be
instructive as to the meaning and reach of the other. In any
particular case one Clause may be thought to capture the essence of
the right in a more accurate and comprehensive way, even as the two
Clauses may converge in the identification and definition of the
right.” Ante , at 19.

															The majority goes on to assert in conclusory
fashion that the Equal Protection Clause provides an alternative
basis for its holding. Ante , at 22. Yet the majority fails
to provide even a single sentence explaining how the Equal
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 the Equal Protection
Clause, because distinguishing between opposite-sex and same-sex
couples is rationally related to the States’ “legitimate state
interest” in “preserving the traditional institution of marriage.” Lawrence , 539 U. S., at 585 (O’Connor, J., concurring
in judgment).

															It is important to note with precision which
laws petitioners have challenged. Although they discuss some of the
ancillary legal benefits that accompany marriage, such as hospital
visitation rights and recognition of spousal status on official
documents, petitioners’ lawsuits target the laws defining marriage
generally rather than those allocating benefits specifically. The
equal protection analysis might be different, in my view, if we
were 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 the respect accorded to its judgments.” Republican Party
of Minn. v. White , 536 U. S. 765, 793 (2002)
(Kennedy, J., concurring). That respect flows from the
perception—and reality—that we exercise humility and restraint in
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 people, who are
responsible for making “new dimensions of freedom . . .
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
of judicial supremacy more evident than in its description—and
dismissal—of the public debate regarding same-sex marriage. Yes,
the majority concedes, on one side are thousands of years of human
history in every society known to have populated the planet. But on
the other side, there has been “extensive litigation,” “many
thoughtful District Court decisions,” “countless studies, papers,
books, and other popular and scholarly writings,” and “more than
100” amicus briefs in these cases alone. Ante , at 9,
10, 23. What would be the point of allowing the democratic process
to go on? It is high time for the Court to decide the meaning of
marriage, based on five lawyers’ “better informed understanding” of
“a liberty that remains urgent in our own era.” Ante , at 19.
The answer is surely there in one of those amicus briefs or
studies.

															Those who founded our country would not
recognize the majority’s conception of the judicial role. They
after all risked their lives and fortunes for the precious right to
govern themselves. They would never have imagined yielding that
right on a question of social policy to unaccountable and unelected
judges. And they certainly would not have been satisfied by a
system empowering judges to override policy judgments so long as
they do so after “a quite extensive discussion.” Ante , at 8.
In our democracy, debate about the content of the law is not an
exhaustion requirement to be checked off before courts can impose
their will. “Surely the Constitution does not put either the
legislative branch or the executive branch in the position of a
television quiz show contestant so that when a given period of time
has elapsed and a problem remains unresolved by them, the federal
judiciary may press a buzzer and take its turn at fashioning a
solution.” Rehnquist, The Notion of a Living Constitution, 54 Texas
L. Rev. 693, 700 (1976). As a plurality of this Court
explained just last year, “It is demeaning to the democratic
process to 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, and sometimes changing their minds. They see
political leaders similarly reexamining their positions, and either
reversing course or explaining adherence to old convictions
confirmed anew. They see governments and businesses modifying
policies and practices with respect to same-sex couples, and
participating actively in the civic discourse. They see countries
overseas democratically accepting profound social change, or
declining to do so. This 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 know that
they have had their say, and accordingly are—in the tradition of
our political culture—reconciled to the result of a fair and honest
debate. In addition, they can gear up to raise the issue later,
hoping to persuade enough on the winning side to think again. “That
is exactly how our system of government is supposed to work.” Post, at 2–3 (Scalia, J., dissenting).

															But today the Court puts a stop to all that. By
deciding this question under the Constitution, the Court removes it
from the realm of democratic decision. There will be consequences
to shutting down the political process on an issue of such profound
public significance. Closing debate tends to close minds. People
denied a voice are less likely to accept the ruling of a court on
an issue that does not seem to be the sort of thing courts usually
decide. As a thoughtful commentator observed about another issue,
“The political process was moving . . . , not swiftly
enough for advocates of quick, complete change, but majoritarian
institutions were listening and acting. Heavy-handed judicial
intervention was difficult to justify and appears to have provoked,
not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and
Equality in Relation to Roe v. Wade , 63
N. C. L. Rev. 375, 385–386 (1985) (footnote omitted).
Indeed, however heartened the proponents of same-sex marriage might
be on this day, it is worth 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 change were
freshening at their backs.

															Federal courts are blunt instruments when it
comes to creating rights. They have constitutional power only to
resolve concrete cases or controversies; they do not have the
flexibility of legislatures to address concerns of parties not
before the court or to anticipate problems that may arise from the
exercise of a new right. Today’s decision, for example, creates
serious questions about religious liberty. Many good and decent
people oppose same-sex marriage as a tenet of faith, and their
freedom to exercise religion is—unlike the right imagined by the
majority—actually spelled out in the Constitution. Amdt. 1.

															Respect for sincere religious conviction has led
voters and legislators in every State that has adopted same-sex
marriage democratically to include accommodations for religious
practice. The majority’s decision imposing same-sex marriage
cannot, of course, create any such accommodations. The majority
graciously suggests that religious believers may continue to
“advocate” and “teach” their views of marriage. Ante , at 27.
The First Amendment guarantees, however, the freedom to
“ exercise ” religion. Ominously, that is not a word the
majority uses.

															Hard questions arise when people of faith
exercise religion in ways that may be seen to conflict with the new
right to same-sex marriage—when, for example, a religious college
provides married student housing only to opposite-sex married
couples, or a religious adoption agency declines to place children
with same-sex married couples. Indeed, the Solicitor General
candidly acknowledged that the tax exemptions of some religious
institutions would be in question if they opposed same-sex
marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is
little doubt that these and similar questions will soon be before
this Court. Unfortunately, people of faith can take no comfort in
the treatment they receive from the majority today.

															Perhaps the most discouraging aspect of today’s
decision is the extent to which the majority feels compelled to
sully those on the other side of the debate. The majority offers a
cursory assurance that it does not intend to disparage people who,
as a matter of conscience, cannot accept same-sex marriage. Ante , at 19. That disclaimer is hard to square with the very
next sentence, in which the majority explains that “the necessary
consequence” of laws 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 definition of
marriage—have acted to “lock . . . out,” “disparage,”
“disrespect and subordinate,” and inflict “[d]ignitary wounds” upon
their gay and lesbian neighbors. Ante , at 17, 19, 22, 25.
These apparent assaults on the character of fairminded people will
have an effect, in society and in court. See post , at 6–7
(Alito, J., dissenting). Moreover, they are entirely gratuitous. It
is one thing for the majority to conclude that the Constitution
protects a right to same-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 the
world 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
whatever sexual 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. 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
American democracy.

															The substance of today’s decree is not of
immense personal importance to me. The law can recognize as
marriage whatever sexual attachments and living arrangements it
wishes, and can accord them favorable civil consequences, from tax
treatment to rights of inheritance. 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 the
Court’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 over same-sex marriage displayed American democracy at its
best. Individuals on both sides of the issue passionately, but
respectfully, attempted to persuade their fellow 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 government 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 the
people”[ 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 States to license and recognize marriages between two
people of the same sex. Does it remove that issue from the
political process?

															Of course not. It would be surprising to find a
prescription regarding marriage in the Federal Constitution since,
as the author of today’s opinion reminded us only two years ago (in
an opinion joined by the same Justices who join him today):

															“[R]egulation of domestic relations is an area
that has long been regarded as a virtually exclusive province of
the States.”[ 10 ]

															“[T]he Federal Government, through our history,
has deferred to state-law policy decisions with respect to domestic
relations.”[ 11 ]

															But we need not speculate. When the Fourteenth
Amendment was ratified in 1868, every State limited marriage to one
man and one woman, and no one doubted the constitutionality of
doing so. That resolves these cases. When it comes to determining
the meaning of a vague constitutional provision—such as “due
process of law” or “equal protection of the laws”—it is
unquestionable that the People who ratified that provision did not
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 debate over same-sex marriage must
be allowed to continue.

															But the Court ends this debate, in an opinion
lacking even a thin veneer of law. Buried beneath the mummeries and
straining-to-be-memorable passages of the opinion is a candid and
startling assertion: No matter what it was the People
ratified, the Fourteenth Amendment protects those rights that the
Judiciary, in its “reasoned judgment,” thinks the Fourteenth
Amendment ought to protect.[ 13 ] That is so because “[t]he generations that wrote and
ratified the Bill of Rights and the Fourteenth Amendment did not
presume to know the extent of freedom in all of its 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 the majority’s judge-empowering estimation, is: “and so
they entrusted to future generations a charter protecting the right
of all persons to enjoy liberty as we learn its meaning.”[ 15 ] The “we,” needless to say, is
the nine of us. “History and tradition guide and discipline [our]
inquiry but do not set its outer boundaries.”[ 16 ] Thus, rather than focusing on the
People’s understanding of “liberty”—at the time of ratification
or even today—the majority focuses on four “principles and
traditions” that, in the majority’s view , prohibit States
from defining marriage as an institution consisting of one man and
one woman.[ 17 ]

															This is a naked judicial claim to
legislative—indeed, super- legislative—power; a claim
fundamentally at odds with our system of government. Except as
limited by a constitutional prohibition agreed to by the People,
the States are free to adopt whatever laws they like, even those
that offend the esteemed Justices’ “reasoned judgment.” A system of
government that makes the People subordinate to a committee of nine
unelected lawyers does not deserve to be called a democracy.

															Judges are selected precisely for their skill as
lawyers; whether they reflect the policy views of a particular
constituency is not (or should not be) relevant. Not surprisingly
then, the Federal Judiciary is hardly a cross-section of America.
Take, for example, this Court, which consists of only nine men and
women, all of them successful lawyers[ 18 ] 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 Southwesterner or even, to tell the truth,
a genuine Westerner (California does not count). Not a single
evangelical Christian (a group that comprises about one quarter of
Americans[ 19 ]), or even a
Protestant of any denomination. The strikingly unrepresentative
character of the body voting on today’s social upheaval would be
irrelevant if they were functioning as judges , answering the
legal question whether the American people had ever ratified a
constitutional provision that was understood to proscribe the
traditional definition of marriage. But of course the Justices in
today’s majority are not voting on that basis; they say
they are not . And to allow the policy question of same-sex
marriage to be considered and resolved by a select, patrician,
highly unrepresentative panel of nine is to violate a principle
even more fundamental than no taxation without representation: no
social transformation without representation.

															II

															But what really astounds is the hubris
reflected in today’s judicial Putsch. The five Justices who compose
today’s majority are entirely comfortable concluding that every
State violated the Constitution for all of the 135 years between
the Fourteenth Amendment’s ratification and Massachusetts’
permitting of same-sex marriages in 2003.[ 20 ] They have discovered in the Fourteenth Amendment a
“fundamental right” overlooked by every person alive at the time of
ratification, and almost everyone else in the time since. They see
what lesser legal minds—minds like Thomas Cooley, John Marshall
Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis,
William Howard Taft, Benjamin Cardozo, Hugo Black, Felix
Frankfurter, Robert Jackson, and Henry Friendly—could not. They are
certain that the People ratified the Fourteenth Amendment to bestow
on them the power to remove questions from the democratic process
when that is called for by their “reasoned judgment.” These
Justices know that limiting marriage to one man and one
woman is contrary to reason; they know that an institution
as old as government itself, and accepted by every nation in
history until 15 years ago,[ 21 ] cannot possibly be supported by anything other than
ignorance or bigotry. And they are willing to say that any citizen
who does not agree with that, who adheres to what was, until 15
years ago, the unanimous judgment of all generations and all
societies, stands against the Constitution.

															The opinion is couched in a style that is as
pretentious as its content is egotistic. It is one thing for
separate 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 profoundly incoherent. “The
nature of marriage is that, through its enduring bond, two persons
together can find other freedoms, such as expression, intimacy, and
spirituality.”[ 23 ] (Really?
Who ever thought that intimacy and spirituality [whatever that
means] were freedoms? And if intimacy is, one would think Freedom
of Intimacy is abridged rather than expanded by marriage. Ask the
nearest hippie. Expression, sure enough, is a freedom, but
anyone in a long-lasting marriage will attest that that happy state
constricts, rather than expands, what one can prudently say.)
Rights, we are told, can “rise . . . from a better
informed understanding of how constitutional imperatives define a
liberty that remains urgent in our own era.”[ 24 ] (Huh? How can a better informed
understanding of how constitutional imperatives [whatever that
means] define [whatever that means] an urgent liberty [never mind],
give birth to a right?) And we are told that, “[i]n any particular
case,” either the Equal Protection or Due Process Clause “may be
thought to capture the 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 due process “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 really dislikes. Hardly a distillation of
essence. If the opinion is correct that the two clauses “converge
in the identification and definition of [a] right,” that is only
because the majority’s likes and dislikes are predictably
compatible.) I could go on. The world does not expect logic and
precision in poetry or inspirational pop-philosophy; it demands
them in the law. The stuff 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 must ultimately
depend upon the aid of the executive arm” and the States, “even for
the efficacy of its judgments.”[ 26 ] With each decision of ours that takes from the People
a question properly left to them—with each decision that is
unabashedly based not on law, but on the “reasoned judgment” of a
bare majority of this Court—we move one step closer to being
reminded of our impotence. Notes 1 Brief for Respondents in
No. 14–571, p. 14. 2 Accord, Schuette v. BAMN , 572 U. S. ___, ___–___ (2014) (plurality
opinion) (slip op., at 15–17). 3 U. S. Const., Art.
I, §10. 4 Art. IV,
§1. 5 Amdt. 1. 6 Ibid . 7 Amdt. 2. 8 Amdt. 4. 9 Amdt. 10. 10 United States v. Windsor , 570 U. S. ___, ___ (2013) (slip op., at 16)
(internal quotation marks and citation omitted). 11 Id., at ___ (slip op., at
17). 12 See Town of Greece v. Galloway , 572 U. S. ___,
___–___ (2014) (slip op., at 7–8). 13 Ante , at
10 . 14 Ante , at 11. 15 Ibid . 16 Ante , at 10–11. 17 Ante, at 12–18. 18 The
predominant attitude of tall-building lawyers with respect to the
questions presented in these cases is suggested by the fact that
the American Bar Association deemed it in accord with the wishes of
its members to file a brief in support of the petitioners. See
Brief for American Bar Association as Amicus Curiae in Nos.
14–571 and 14–574, pp. 1–5. 19 See
Pew Research Center, America’s Changing Religious Landscape 4 (May
12, 2015). 20 Goodridge v. Department of
Public Health , 440 Mass. 309, 798 N. E. 2d 941
(2003). 21 Windsor , 570 U. S., at
___ (Alito, J., dissenting) (slip op., at 7). 22 If,
even as the price to be paid for a fifth vote, I ever joined an
opinion for the Court that began: “The Constitution promises
liberty to all within its reach, a liberty that includes certain
specific rights that allow persons, within a lawful realm, to
define and express their identity,” I would hide my head in a bag.
The Supreme Court of the United States has descended from the
disciplined legal reasoning of John Marshall and Joseph Story to
the mystical aphorisms of the fortune cookie. 23 Ante , at 13. 24 Ante, at 19. 25 Ibid . 26 The
Federalist No. 78, pp. 522, 523 (J. Cooke ed. 1961) (A.
Hamilton). SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 14–556, 14-562, 14-571 and 14–574

															_________________

															JAMES OBERGEFELL, et al.,
PETITIONERS

															14–556 v. RICHARD HODGES, DIRECTOR, OHIO
DEPARTMENT OF HEALTH, et al.;

															VALERIA TANCO, et al.,
PETITIONERS

															14–562 v. BILL HASLAM, GOVERNOR OF TENNESSEE,
et al.;

															APRIL DeBOER, et al.,
PETITIONERS

															14–571 v. RICK SNYDER, GOVERNOR OF MICHIGAN,
et al.; AND

															GREGORY BOURKE, et al.,
PETITIONERS

															14–574 v. STEVE BESHEAR, GOVERNOR OF KENTUCKY

															on writs of certiorari to the united states
court of appeals for the sixth circuit

															[June 26, 2015]

															Justice Thomas, with whom Justice Scalia
joins, dissenting.

															The Court’s decision today is at odds not only
with the Constitution, but with the principles upon which our
Nation was built. Since well before 1787, liberty has been
understood as freedom from government action, not entitlement to
government benefits. The Framers created our Constitution to
preserve that understanding of liberty. Yet the majority invokes
our Constitution in the name of a “liberty” that the Framers would
not have recognized, to the detriment of the liberty they sought to
protect. Along the way, it rejects the idea—captured in our
Declaration of Independence—that human dignity is innate and
suggests instead that it comes from the Government. This distortion
of our Constitution not only ignores the text, it inverts the
relationship between the individual and the state in our Republic.
I cannot agree with it.

															I

															The majority’s decision today will require
States to issue marriage licenses to same-sex couples and to
recognize same-sex marriages entered in other States largely based
on a constitutional provision guaranteeing “due process” before a
person is deprived of his “life, liberty, or prop-erty.” I have
elsewhere explained the dangerous fiction of treating the Due
Process Clause as a font of substantive rights. McDonald v. Chicago , 561 U. S. 742 –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 is deprived of life, liberty, and
property. U. S. Const., Amdt. 14, §1. Worse, it invites judges
to do exactly what the majority has done here—“ ‘roa[m] at
large in the 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 in judgment 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 that by
enshrining the traditional definition of marriage in their State
Constitutions through voter-approved amendments, the States have
put the issue “beyond the reach of the normal democratic process.”
Brief for Petitioners in No. 14–562, p. 54. But the result
petitioners seek is far less democratic. They ask nine judges on
this Court to enshrine their definition of marriage in the Federal
Constitution and thus put it beyond the reach of the normal
democratic process for the entire Nation. That a “bare majority” of
this Court, ante, at 25, is able to grant this wish, wiping
out with a stroke of the keyboard the results of the political
process in over 30 States, based on a provision that guarantees
only “due process” is but further evidence of the danger of
substantive due process.[ 1 ]

															II

															Even if the doctrine of substantive due
process were somehow defensible—it is not—petitioners still would
not have a claim. To invoke the protection of the Due Process
Clause at all—whether under a theory of “substantive” or
“procedural” due process—a party must first identify a deprivation
of “life, liberty, or property.” The majority claims these state
laws deprive petitioners of “liberty,” but the concept of “liberty”
it conjures up bears no resemblance to any plausible meaning of
that word as it is used in the Due Process Clauses.

															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 –102 (1878). Chapter 39 of the
original Magna 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, Magna Carta: Text and Commentary 43 (1964).
Although the 1215 version of Magna Carta was in effect for only a
few weeks, this provision was later reissued in 1225 with modest
changes to its wording as follows: “No freeman shall be taken, or
imprisoned, or be disseised of his 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 years later, Sir
Edward Coke interpreted the words “by the law of the land” to mean
the same thing as “by due proces of the common law.” Id., at
50.

															After Magna Carta became subject to renewed
interest in the 17th century, see, e.g., ibid. , William
Blackstone referred to this provision as protecting the “absolute
rights of every Englishman.” 1 Blackstone 123. And he formulated
those absolute rights as “the right of personal secu-rity,” which
included the right to life; “the right of personal liberty”; and
“the right of private property.” Id., at 125. He defined
“the right of personal liberty” as “the power of loco-motion, of
changing situation, or removing one’s person to whatsoever place
one’s own inclination may direct; without imprisonment or
restraint, unless by due course of law.” Id. , at 125,
130.[ 2 ]

															The Framers drew heavily upon Blackstone’s
formulation, adopting provisions in early State Constitutions that
replicated Magna Carta’s language, but were modified to refer
specifically to “life, liberty, or property.”[ 3 ] State decisions interpreting these provisions
between the founding and the ratification of the Fourteenth
Amendment almost uniformly construed the word “liberty” to refer
only to freedom from physical restraint. See Warren, The New
“Liberty” Under the Fourteenth Amendment, 39 Harv. L. Rev.
431, 441–445 (1926). Even one case that has been identified as a
possible exception to that view merely used broad language about
liberty in the context of a habeas corpus proceeding—a proceeding
classically associated with obtaining freedom from physical
restraint. Cf. id., at 444–445.

															In enacting the Fifth Amendment’s Due Process
Clause, the Framers similarly chose to employ the “life, liberty,
or property” formulation, though they otherwise deviated
substantially from the States’ use of Magna Carta’s language in the
Clause. See Shattuck, The True Meaning of the Term “Liberty” in
Those Clauses in the Federal and State Constitutions Which Protect
“Life, Liberty, and Property,” 4 Harv. L. Rev. 365, 382
(1890). When read in light of the history of that formulation, it
is hard to see how the “liberty” protected by the Clause could be
interpreted to include anything broader than freedom from physical
restraint. That was the consistent usage of the time when “liberty”
was paired with “life” and “property.” See id., at 375. And
that usage avoids rendering superfluous those protections for
“life” and “property.”

															If the Fifth Amendment uses “liberty” in this
narrow sense, then the Fourteenth Amendment likely does as well.
See Hurtado v. California , 110 U. S. 516 –535
(1884). Indeed, this Court has previously commented, “The
conclusion is . . . irresistible, that when the same
phrase was employed in the Fourteenth Amendment [as was used in the
Fifth Amendment], it was used in the same sense and with no greater
extent.” Ibid . And this Court’s earliest Fourteenth
Amendment decisions appear to interpret the Clause as using
“liberty” to mean freedom from physical restraint. In Munn v. Illinois , 94 U. S. 113 (1877) , for example, the
Court recognized the relationship between the two Due Process
Clauses and Magna Carta, see id., at 123–124, and implicitly
rejected the dissent’s argument that “ ‘liberty’ ”
encompassed “something more . . . than mere freedom from
physical restraint or the bounds of a prison,” id., at 142
(Field, J., dissenting). That the Court appears to have lost its
way in more recent years does not justify deviating from the
original meaning of the Clauses.

															2

															Even assuming that the “liberty” in those
Clauses encompasses something more than freedom from physical
restraint, it would not include the types of rights claimed by the
majority. In the American legal tradition, liberty has long been
understood as individual freedom from governmental action,
not as a right to a particular 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 state of nature, possessed of the
“perfect freedom to order their actions and dispose of their
possessions and persons as they think fit, within the bounds of the
law of nature, without asking leave, or depending upon the will of
any other man.” J. Locke, Second Treatise of Civil Government, §4,
p. 4 (J. Gough ed. 1947) (Locke). Because that state of nature left
men insecure in their persons and property, they entered civil
society, trading a portion of their natural liberty for an increase
in their security. See 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 the
commonwealth; nor under the dominion of any will or restraint of
any law, but what that legislative shall enact according to the
trust put in it.” Id., §22, at 13.[ 4 ]

															This philosophy permeated the 18th-century
political scene in America. A 1756 editorial in the Boston Gazette,
for example, declared that “Liberty in the State of Nature ”
was the “inherent natural Right” “of each Man” “to make a free Use
of his Reason and Understanding, and to chuse that Action which he
thinks he can give the best Account of,” but that, “in Society,
every Man parts with a Small Share of his natural Liberty,
or lodges it in the publick Stock, that he may possess the
Remainder without Controul.” Boston Gazette and Country Journal,
No. 58, May 10, 1756, p. 1. Similar sentiments were expressed in
public speeches, sermons, and letters of the time. See 1 C. Hyneman
& D. Lutz, American Political Writing During the Founding Era
1760–1805, pp. 100, 308, 385 (1983).

															The founding-era idea of civil liberty as
natural liberty constrained by human law necessarily involved only
those freedoms that existed outside of government. See
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 eighteenth century was thought of much
more in relation to ‘negative liberty’; that is, freedom from , not freedom to , freedom from a number of social
and political evils, including arbitrary government power.” J.
Reid, The Concept of Liberty in the Age of the American Revolution
56 (1988). Or as one scholar put it in 1776, “[T]he common idea of
liberty is merely negative, and is only the absence of
restraint .” R. Hey, Observations on the Nature of Civil Liberty
and the Principles of Government §13, p. 8 (1776) (Hey). When the
colonists described laws that would infringe their liberties, they
discussed laws that would prohibit individuals “from walking in the
streets and highways on certain saints days, or from being abroad
after a certain time in the evening, or . . . restrain [them] from
working up and 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 involved
freedoms that existed outside of government.

															B

															Whether we define “liberty” as locomotion or
freedom from governmental action more broadly, petitioners have in
no way been deprived of it.

															Petitioners cannot claim, under the most
plausible definition of “liberty,” that they have been imprisoned
or physically restrained by the States for participating in
same-sex relationships. To the contrary, they have been able to
cohabitate and raise their children in peace. They have been able
to hold civil marriage ceremonies in States that recognize same-sex
marriages and private religious ceremonies in all States. They have
been able to travel freely around the country, making their homes
where they please. Far from being incarcerated or physically
restrained, petitioners have been left alone to order their lives
as they see fit.

															Nor, under the broader definition, can they
claim that the States have restricted their ability to go about
their daily lives as they would be able to absent governmental
restrictions. Petitioners do not ask this Court to order the States
to stop restricting their ability to enter same-sex relationships,
to engage in intimate behavior, to make vows to their partners in
public ceremonies, to engage in religious wedding ceremonies, to
hold themselves out as married, or to raise children. The States
have imposed no such restrictions. Nor have the States prevented
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 benefits that
exist solely because of the government. They want, for
example, to receive the State’s imprimatur on their
marriages—on state issued marriage licenses, death certificates, or
other official forms. And they want to receive various monetary
benefits, including reduced inheritance taxes upon the death of a
spouse, compensation if a spouse dies as a result of a work-related
injury, or loss of 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 a natural right to marriage that fell within the broader
definition of liberty, it would not have included a right to
governmental recognition and benefits. Instead, it would have
included a right to engage in the very same activities that
petitioners have been left free to engage in—making vows, holding
religious ceremonies celebrating those vows, raising children, and
otherwise enjoying the society of one’s spouse—without governmental
interference. At the founding, such conduct was understood to
predate 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 to
marry, not one of which has expanded the concept of “liberty”
beyond the concept of negative liberty. Those precedents all
involved absolute prohibitions on private actions associated with
marriage. Loving v. Virginia , 388 U. S. 1 (1967)
, for example, involved a couple who was criminally prosecuted for
marrying in the District of Columbia and cohabiting in Virginia, id., at 2–3.[ 5 ] They
were each sentenced 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 criminal penalty, from “marry[ing] in
Wisconsin or elsewhere” because of his outstanding child-support
obligations, id., at 387; see id., at 377–378. And Turner v. Safley , 482 U. S. 78 (1987) , involved
state inmates who were prohib-ited from entering marriages without
the permission of the superintendent of the prison, permission that
could not be granted absent compelling reasons, id., at 82.
In none of those cases were individuals denied solely
governmental recognition and benefits associated with marriage.

															In a concession to petitioners’ misconception of
liberty, the majority characterizes petitioners’ suit as a quest to
“find . . . liberty by marrying someone of the same sex
and having their marriages deemed lawful on the same terms and
conditions as marriages between persons of the opposite sex.” Ante, at 2. But “liberty” is not lost, nor can it be found
in the way petitioners seek. As a philosophical matter, liberty is
only freedom from governmental action, not an entitlement to
governmental benefits. And as a constitutional matter, it is likely
even narrower than that, encompassing only freedom from physical
restraint and imprisonment. The majority’s “better informed
understanding of how constitutional imperatives define
. . . liberty,” ante, at 19,—better informed, we
must assume, than that of the people who ratified the Fourteenth
Amendment—runs headlong into the reality that our Constitution is a
“collection of ‘Thou shalt nots,’ ” Reid v. Covert , 354 U. S. 1, 9 (1957) (plurality opinion), not
“Thou shalt provides.”

															III

															The majority’s inversion of the original
meaning of liberty will likely cause collateral damage to other
aspects of our constitutional order that protect liberty.

															A

															The majority apparently disregards the
political process as a protection for liberty. Although men, in
forming a civil society, “give up all the power necessary to the
ends for which they unite into society, to the majority of the
community,” Locke §99, at 49, they reserve the authority to
exercise natural liberty within the bounds of laws 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 adopt and enforce its
laws. In our country, that process is primarily representative
government at the state level, with the Federal Constitution
serving as a backstop for that process. As a general matter, when
the States act through their representative governments or by
popular vote, the liberty of their residents is fully vindicated.
This is no less true when some residents disagree with the result;
indeed, it seems difficult to imagine any law on which all
residents of a State would agree. See Locke §98, at 49 (suggesting
that society would cease to function if it required unanimous
consent to laws). What matters is that the process established by
those who created the society has been honored.

															That process has been honored here. The
definition of marriage has been the subject of heated debate in the
States. Legislatures have repeatedly taken up the matter on behalf
of the People, and 35 States have put the 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 own havens for
religious practice. Ibid. Many of these havens were
initially homogenous communities with established religions. Ibid. By the 1780’s, however, “America was in the wake of a
great religious revival” marked by a move toward free exercise of
religion. Id., at 1437. Every State save Connecticut adopted
protections for religious freedom in their State Constitutions by
1789, id., at 1455, and, of course, the First Amendment
enshrined protection for the free exercise of religion in the
U. S. Constitution. But that protection was far from the last
word on religious liberty in this country, as the Federal
Government and the States have reaffirmed their commitment to
religious liberty by codifying protections for religious practice.
See, e.g., Religious Freedom Restoration Act of 1993,
107Stat. 1488, 42 U. S. C. §2000bb et seq .;
Conn. Gen. Stat. §52–571b (2015).

															Numerous amici —even some not supporting
the States—have cautioned the Court that its decision here will
“have unavoidable and wide-ranging implications for religious
liberty.” Brief for General Conference of Seventh-Day Adventists et
al. as Amici Curiae 5. In our society, marriage is not
simply a governmental institution; it is a religious institution as
well. Id., at 7. Today’s decision might change the former,
but it cannot change the latter. It appears all but inevitable that
the two will come into conflict, particularly as individuals and
churches are confronted with demands to participate in and endorse
civil marriages between same-sex couples.

															The majority appears unmoved by that
inevitability. It makes only a weak gesture toward religious
liberty in a single paragraph, ante, at 27. And even that
gesture indicates a misunderstanding of religious liberty in our
Nation’s tradition. Religious liberty is about more than just the
protection for “religious organizations and persons . . .
as they seek to teach the principles that are so fulfilling and so
central to their lives and faiths.” Ibid. Religious liberty
is about freedom of action in matters of religion generally, and
the scope of that liberty is directly correlated to the civil
restraints placed upon religious 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 marriage to be left to
the political process—as the Constitution requires—the People could
have considered the religious liberty implications of deviating
from the traditional 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
actually involve 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 it did, the government would be
incapable of bestowing dignity.

															Human dignity has long been understood in this
country to be innate. When the Framers proclaimed in the
Declaration of Independence that “all men are created equal” and
“endowed by their Creator with certain unalienable Rights,” they
referred to a vision of mankind in which all humans are created in
the image of God and therefore of inherent worth. That vision is
the foundation upon which this Nation was built.

															The corollary of that principle is that human
dignity cannot be taken away by the government. Slaves did not lose
their dignity (any more than they lost their humanity) because the
government allowed them to be enslaved. Those held in internment
camps did not lose their dignity because the government confined
them. And those denied governmental benefits certainly do not lose
their dignity because the government denies them those benefits.
The government cannot bestow dignity, and it cannot take it
away.

															The majority’s musings are thus deeply
misguided, but at least those musings can have no effect on the
dignity of the persons the majority demeans. Its
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 to adhere to
the traditional definition of marriage. And its disdain for the
understandings of liberty and dignity upon which this Nation was
founded can have no effect on the dignity of Americans who continue
to believe in them.

															*  *  *

															Our Constitution—like the Declaration of
Independence before it—was predicated on a simple truth: One’s
liberty, not to mention one’s dignity, was something to be shielded
from—not provided by—the State. Today’s decision casts that truth
aside. In its haste to reach a desired result, the majority
misapplies a clause focused on “due process” to afford substantive
rights, disregards the most plausible understanding of the
“liberty” protected by that clause, and distorts the principles on
which this Nation was founded. Its decision will have inestimable
consequences for our Constitution and our society. I respectfully
dissent. Notes 1 The majority states that
the right it believes is “part of the liberty promised by the
Fourteenth Amendment is derived, too, from that Amendment’s
guarantee of the equal protection of the laws.” Ante, at 19.
Despite the “synergy” it finds “between th[ese] two protections,” ante , at 20, the majority clearly uses equal protection only
to shore up its substantive due process analysis, an analysis both
based on an imaginary constitutional protection and revisionist
view of our history and tradition. 2 The seeds of this
articulation can also be found in Henry Care’s influential
treatise, English Liberties. First published in America in 1721, it
described the “three things, which the Law of England . . . principally regards and taketh Care of,” as
“ Life , Liberty and Estate ,” and described
habeas corpus as the means by which one could procure one’s
“Liberty” from imprisonment. The Habeas Corpus Act, comment., in
English Liberties, or the Free-born Subject’s Inheritance 185 (H.
Care comp. 5th ed. 1721). Though he used the word “Liberties” by
itself more broadly, see, e.g., id., at 7, 34, 56, 58, 60,
he used “Liberty” in a narrow sense when placed alongside the words
“Life” or “Estate,” see, e.g., id., at 185,
200. 3 Maryland, North Carolina,
and South Carolina adopted the phrase “life, liberty, or property”
in provisions otherwise tracking Magna Carta: “That no freeman
ought to be taken, or imprisoned, or disseized of his freehold,
liberties, or privileges, or outlawed, or exiled, or in any manner
destroyed, or deprived of his life, liberty, or property, but by
the judgment of his peers, or by the law of the land.” Md. Const.,
Declaration of Rights, Art. XXI (1776), in 3 Federal and State
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, or privileges,
put out of the protection of the law, exiled, or deprived of his
life, liberty, or estate, but by the judgment of his peers, or the
law of the land.” Mass. Const., pt. I, Art. XII (1780), in 3 id., at 1891; see also N. H. Const., pt. I, Art. XV
(1784), in 4 id., at 2455. 4 Locke’s theories heavily
influenced other prominent writers of the 17th and 18th centuries.
Blackstone, for one, agreed that “natural liberty consists properly
in a power of acting as one thinks fit, without any restraint or
control, unless by the law of nature” and described civil liberty
as that “which leaves the subject entire master of his own
conduct,” except as “restrained by human laws.” 1 Blackstone
121–122. And in a “treatise routinely cited by the Founders,” Zivotofsky v. Kerry , ante, at 5 (Thomas, J.,
concurring in judgment in part and dissenting in part), Thomas
Rutherforth wrote, “By liberty we mean the power, which a man has
to act as he thinks fit, where no law restrains him; it may
therefore be called a mans right over his own actions.” 1 T.
Rutherforth, Institutes of Natural Law 146 (1754). Rutherforth
explained that “[t]he only restraint, which a mans right over his
own actions is originally under, is the obligation of governing
himself by the law of nature, and the law of God,” and that
“[w]hatever right those of our own species may have . . .
to restrain [those actions] within certain bounds, beyond what the
law of nature has prescribed, arises from some after-act of our
own, from some consent either express or tacit, by which we have
alienated our liberty, or transferred the right of directing our
actions from ourselves to them.” Id., at
147–148. 5 The suggestion of
petitioners and their amici that antimiscegenation laws are
akin to laws defining marriage as between one man and one woman is
both offensive and inaccurate. “America’s earliest laws against
interracial sex and marriage were spawned by slavery.” P. Pascoe,
What Comes Naturally: Miscegenation Law and the Making of Race in
America 19 (2009). For instance, Maryland’s 1664 law prohibiting
marriages between “ ‘freeborne English women’ ” and
“ ‘Negro Sla[v]es’ ” was passed as part of the very act
that authorized lifelong 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 that signified the emergence of miscegenation law
and made restrictions on interracial marriage the foundation of
post-Civil War white suprem-acy.” Pascoe, supra , at
27–28. 6 The prohibition extended
so far as to forbid even religious ceremonies, thus raising a
serious question under the First Amendment’s Free Exercise Clause,
as at least one amicus brief at the time pointed out. Brief
for John J. Russell et al. as Amici Curiae in Loving v. Virginia , O.T. 1966, No. 395, pp.
12–16. 7 Concerns about threats to
religious liberty in this context are not unfounded. During the
hey-day of antimiscegenation laws in this country, for instance,
Virginia imposed criminal penalties on ministers who performed
marriage in violation of those laws, though their religions would
have permitted them to perform such ceremonies. Va. Code Ann.
§20–60 (1960). 8 The 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. SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 14–556, 14-562, 14-571 and 14–574

															_________________

															JAMES OBERGEFELL, et al.,
PETITIONERS

															14–556 v. RICHARD HODGES, DIRECTOR, OHIO
DEPARTMENT OF HEALTH, et al.;

															VALERIA TANCO, et al.,
PETITIONERS

															14–562 v. BILL HASLAM, GOVERNOR OF TENNESSEE,
et al.;

															APRIL DeBOER, et al.,
PETITIONERS

															14–571 v. RICK SNYDER, GOVERNOR OF MICHIGAN,
et al.; AND

															GREGORY BOURKE, et al.,
PETITIONERS

															14–574 v. STEVE BESHEAR, GOVERNOR OF KENTUCKY

															on writs of certiorari to the united states
court of appeals for the sixth circuit

															[June 26, 2015]

															Justice Alito, with whom Justice Scalia and
Justice Thomas join, dissenting.

															Until the federal courts intervened, the
American people were engaged in a debate about whether their States
should recognize same-sex marriage.[ 1 ] The question in these cases, however, is not what
States should do about same-sex marriage but whether the
Constitution answers that question for them. It does not. The
Constitution leaves that question to be decided by the people of
each State.

															I

															The Constitution says nothing about a right to
same-sex marriage, but the Court holds that the term “liberty” in
the Due Process Clause of the Fourteenth Amendment encompasses this
right. Our Nation was founded upon the principle that every person
has the unalienable right to liberty, but liberty is a term of many
meanings. For 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
their personal vision of liberty upon the American people, the
Court has held that “liberty” under the Due Process Clause should
be understood to protect only those rights that are “ ‘deeply
rooted in this Nation’s history and tradition.’ ” Washington v . Glucksberg , 521 U. S. 701 –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 Court held in
2003 that limiting marriage to opposite-sex couples violated the
State Constitution. See Goodridge v. Department of Public
Health , 440 Mass. 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 marry until the
Netherlands did so in 2000.

															“What [those arguing in favor of a
constitutional right to same sex marriage] seek, therefore, is not
the protection of a deeply rooted right but the recognition of a
very new right, and they seek this innovation not from a
legislative body elected by the people, but from unelected judges.
Faced with such a request, judges have cause for both caution and
humility.” Id., at ___ (slip op., at 7–8) (footnote
omitted).

															For today’s majority, it does not matter that
the right to same-sex marriage lacks deep roots or even that it is
contrary to long-established tradition. The Justices in the
majority claim the authority to confer constitutional protection
upon that right simply because they believe that it is
fundamental.

															II

															Attempting to circumvent the problem presented
by the newness of the right found in these cases, the majority
claims that the issue is the right to equal treatment. Noting that
marriage is a fundamental right, the majority argues that a State
has no valid reason for denying that right to same-sex couples.
This reasoning is dependent upon a particular understanding of the
purpose of civil marriage. Although the Court expresses the point
in loftier terms, its argument is that the fundamental 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 indirectly benefits society because persons who live in
stable, fulfilling, and supportive relationships make better
citizens. It is for these reasons, the argument goes, that States
encourage and formalize marriage, confer special benefits on
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 way as opposite-sex marriage.

															This understanding of marriage, which focuses
almost entirely on the happiness of persons who choose to marry, is
shared by many people today, but it is not the traditional one. For
millennia, marriage was inextricably linked to the one thing that
only an opposite-sex couple can do: procreate.

															Adherents to different schools of philosophy use
different terms to explain why society should formalize marriage
and attach special benefits and obligations to persons who marry.
Here, the States defending their adherence to the traditional
understanding of marriage have 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, in
order to encourage potentially procreative conduct to take place
within a lasting unit that has long been thought to provide the
best atmosphere for raising children. They thus argue that there
are reasonable secular grounds for restricting marriage to
opposite-sex couples.

															If this traditional understanding of the purpose
of marriage does not ring true to all ears today, that is probably
because the tie between marriage and procreation has frayed. Today,
for instance, more than 40% of all children in this country are
born to unmarried women.[ 2 ]
This development undoubtedly is both a cause and a result of
changes in our society’s understanding of marriage.

															While, for many, the attributes of marriage in
21st-century America have changed, those States that do not want to
recognize same-sex marriage have not yet given up on the
traditional understanding. They worry that by officially abandoning
the older understanding, they may contribute to marriage’s further
decay. It is far beyond the outer reaches of this Court’s authority
to say that a State may not adhere to the understanding of marriage
that has long prevailed, not just in this country and others with
similar cultural roots, but also in a great variety of countries
and cultures all around the globe.

															As I wrote in Windsor :

															“The family is an ancient and universal human
institution. Family structure reflects the characteristics of a
civilization, and changes in family structure and in the popular
understanding of marriage and the family can have profound effects.
Past changes in the understanding of marriage—for example, the
gradual ascendance of the idea that romantic love is a prerequisite
to marriage—have had far-reaching consequences. But the process by
which such consequences come about is complex, involving the
interaction of numerous factors, and tends to occur over an
extended period of time.

															“We can expect something similar to take place
if same-sex marriage becomes widely accepted. The long-term
consequences of this change are not now known and are unlikely to
be ascertainable for some time to come. There are those who think
that allowing same-sex marriage will seriously undermine the
institution of marriage. Others think that recognition 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 the people to decide whether to keep or alter the
traditional understanding of marriage. The decision will also have
other important consequences.

															It will be used to vilify Americans who are
unwilling to assent to the new orthodoxy. In the course of its
opinion, the majority compares traditional marriage laws to laws
that denied equal treatment for African-Americans and women. E.g. , ante , at 11–13. The implications of this
analogy will be exploited by those who are determined to stamp out
every vestige of dissent.

															Perhaps recognizing how its reasoning may be
used, the majority attempts, toward the end of its opinion, to
reassure those who oppose same-sex marriage that their rights of
conscience will be protected. Ante , at 26–27. We will soon
see whether this proves to be true. I assume that those who cling
to old beliefs will be able to whisper their thoughts in the
recesses of their homes, but if they repeat those views in public,
they will risk being labeled as bigots and treated as such by
governments, employers, and schools.

															The system of federalism established by our
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 States would tie recognition to
protection for conscience rights. The majority today makes that
impossible. By imposing its own views on the entire country, the
majority facilitates the marginalization of the many Americans who
have traditional ideas. Recalling the harsh treatment of gays and
lesbians in the past, some may think that turnabout is fair play.
But if that sentiment prevails, the Nation will experience bitter
and lasting wounds.

															Today’s decision will also have a fundamental
effect on this Court and its ability to uphold the rule of law. If
a bare majority of Justices can invent a new right and impose that
right on the rest of the country, the only real limit on what
future majorities will be able to do is their own sense of what
those with political power and cultural influence are willing to
tolerate. Even enthusiastic supporters of same-sex marriage should
worry about the scope of the power that today’s majority
claims.

															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 preaching
about the proper method of interpreting the Constitution or the
virtues of judicial self-restraint and humility cannot compete with
the temptation to achieve what is viewed as a noble end by any
practicable means. I do not doubt that my colleagues in the
majority sincerely see in the Constitution a vision of liberty that
happens to coincide with their own. But this sincerity is cause for
concern, not comfort. What it evidences is the deep and perhaps
irremediable corruption of our legal culture’s conception of
constitutional interpretation.

															Most Americans—understandably—will cheer or
lament today’s decision because of their views on the issue of
same-sex marriage. But all Americans, whatever their thinking on
that issue, should worry about what the majority’s claim of power
portends. Notes 1 I use the phrase
“recognize marriage” as shorthand for issuing marriage licenses and
conferring those special benefits and obligations provided under
state law for married persons. 2 See, e.g., Dept.
of Health and Human Services, Centers for Disease Control and
Prevention, National Center for Health Statistics, D. Martin, B.
Hamilton, M. Osterman, S. Curtin, & T. Matthews, Births: Final
Data for 2013, 64 National Vital Statistics Reports, No. 1,
p. 2 (Jan. 15, 2015), online at
http://www.cdc.gov/nchs/data/nvsr/nvsr64/nvsr64_01.pdf (all
Internet materials as visited June 24, 2015, and available in Clerk
of Court’s case file); cf. Dept. of Health and Human Services,
Centers for Disease Control and Prevention, National Center for
Health Statistics (NCHS), S. Ventura, Changing Patterns of
Nonmartial Childbearing in the United States, NCHS Data Brief, No.
18 (May 2009), online at
http://www.cdc.gov/nchs/data/databrief/db18.pdf.