Introduction

            The Supreme Court, as an institution, has historically issued rulings that drastically altered the fabric of American society. A 2015 ruling, which legalized same-sex marriage nationwide, was no exception. Let me give you some background: up until the summer of 2015, laws in various states that banned same-sex marriage were on the books. This meant that same-sex, or gay, couples could not get married in the way that straight, or heterosexual, couples could. Many people considered this to be patently unfair and even unconstitutional. As a gay male, I benefitted from various previous Supreme Court rulings regarding the acceptance of, and equal rights for, LGBT+ identifying individuals. The acronym LGBT largely stands for Lesbian, Gay, Bisexual, & Transgender. It can be typically used as an umbrella term for anyone who does not identify as straight or cisgender (the opposite of transgender). The recent decision by the Supreme Court to legalize same-sex marriage was a milestone for the gay rights movement, a movement which many people now see as a modern-day struggle for civil rights.

The question I have here is, how does the Supreme Court typically make controversial decisions having to do with sensitive “culture war” issues such as same-sex marriage? One oft-cited hypothesis involves the idea that the ideology of each justice plays a crucial role. It is important, at this point, to note that the important Supreme Court case that legalized same-sex marriage nationwide was called Obergefell. At the time when the Obergefell ruling was handed down, there were five conservative justices on the Court and four liberal ones. Regardless, the Court sided with the plaintiff, Jim Obergefell, whose marriage to his late husband, John Arthur, was not recognized in his home state of Ohio (American Civil Liberties Union). In this case, ideology most definitely played a role in the Court’s decision-making process. It is important to note, however, that ideology is not the only explanation for the Court’s behavior. Gay marriage is, of course, an issue that is typically embraced by liberals rather than conservatives. Ultimately, there are many theories that describe how the Court makes controversial decisions. The question is, which one is the most likely and the most accurate in this particular scenario? Of course, it is very likely that each and every theory contributes in its own way to explaining how the Court processed the Obergefell case. This would mean that no single theory may be superior compared to any other theory.

If it is recognized that the ideology hypothesis in this case is not the only relevant theory, it becomes important to discuss other theories that may explain why and how the Court makes controversial decisions. That is the goal of this paper: to conduct a detailed case study and draft hypotheses having to do with how the Supreme Court decided to rule in the Obergefell case. The final goal, of course, is to explain how the Court typically makes some of its controversial decisions. The layout of the paper is as follows: Firstly, I have decided to include a literature review, which is basically an in-depth examination of the various scholarly articles that discuss how the Supreme Court makes decisions. Secondly, I have included a methods section, which describes how I conducted my research and details how I performed my case study. Thirdly, there is an analysis section, which discusses the theories and how they work together to explain the Supreme Court’s behavior. Fourthly there is the conclusion, in which I go into detail about the future of the gay rights movement and discuss how the theories explain how the Court reached its verdict regarding Obergefell. Finally, there is an appendix, which contains excerpts from the original majority and minority opinions as generated by the Supreme Court during the processing of the Obergefell case.

Ultimately, for the purposes of this paper, I decided to examine four schools of thought, in addition to the original and most obvious theory, which is about ideology. Each theory, or school, deals with the justices’ decision-making processes in its own unique way. The first theory of course involves ideology, the second involves the relevance of constitutionality, the third theory involves the importance of states’ rights and public opinion, the fourth theory involves the significance of precedent, and the fifth and final theory involves Justice Kennedy’s influence as a swing vote. In the end, after conducting extensive research, I decided that each theory contributes to explaining the Court’s decision-making process in its own way. Most compelling, in my opinion, besides the ideology hypothesis, is the idea of Justice Kennedy as a swing vote who wanted to cultivate a legacy of being in favor of gay rights. Kennedy’s role as a conservative-leaning but marriage equality-promoting justice was instrumental and in fact crucial—if it weren’t for him, it would be very likely that the Court would not have ruled in favor of Jim Obergefell on that fateful day in 2015.

            In the end, I believe that any Supreme Court ruling which extends key civil rights to important constituencies is a ruling that is worth further examination. I have never been prouder of my country than I was the day the Obergefell ruling was handed down. Ultimately, I believe that America is for everyone. When gay people win, everyone wins. The road to nationwide marriage equality, also known as marriage for all, was long and treacherous, but last summer, the final destination was completely and fully reached. I can only hope that, through this paper, I am able to impart how crucial this ruling actually was, and how it can help us understand the internal dynamics of a body that often prides itself on being mysterious. Please join me in analyzing how the Supreme Court makes some of its most controversial, and yet impactful, decisions—decisions that affect millions of Americans, and can ultimately make the world a better place.

My Literature Review: Five Possible Theories

            When examining the reasons for the U.S. Supreme Court’s ruling in Obergefell v. Hodges, it is important to study how the Court makes controversial decisions having to do with “culture war” issues. One such “culture war” issue is, of course, same-sex marriage. In short, as I previously mentioned, the Obergefell case involved a gay plaintiff whose husband had died. The state of Ohio refused to recognize the married couple on its death certificate because the marriage took place out of state (American Civil Liberties Union). Needless to say, Ohio was not issuing marriage certificates to gay couples at the time.

Theory #1: Ideology

The ideological makeup of the Supreme Court, according to the New York Times, can be charted and investigated (Fairfield & Liptak, 2014). According to the Times, there are three extremely liberal justices, one moderately liberal justice, one swing vote, and four rather conservative justices (Fairfield & Liptak, 2014). However, the usual swing vote on the Court, Justice Kennedy, often sides with the conservative bloc. This means that, effectively, the Court tends to be conservative. Gay marriage is an issue that is typically supported by liberal individuals and not conservatives. Because of this fact, I can infer that the ideologies of the four liberal justices on the court probably made them predisposed to ruling in favor of the gay plaintiff, Jim Obergefell. I can also deduce that the four more conservative justices were against the legalization of same-sex marriage. All one needs to do is look at the way the Court ruled in order to explain the relevance and influence of ideology. According to Oyez.org, an influential website about the Supreme Court, the four liberal justices on the Court tended to favor the plaintiff, and the four more conservative justices tended to disagree with him (Oyez). Justice Kennedy provided the swing vote (Oyez). This begs the question, why would Kennedy, who is typically a conservative justice, decide to rule in such a way as to promote the legalization of same-sex marriage nationwide? It is true that typically, whenever a controversial case arises, the Court relies on ideology to make decisions. In order to fully explain the Court’s behavior in this case, however, it is important to consider more than one theory or explanation. I reiterate my previous question: How does the Court typically handle cases such as this, relating to sensitive and controversial “culture war” issues?

Theory #2: Constitutionality and Judicial Review

One school of thought argues that, when issuing the Obergefell ruling, the Court was simply doing its job. In 1803, the Court considered the groundbreaking Marbury v. Madison case, which established the practice of judicial review (Oyez). According to Cornell University Law School, “judicial review” basically means that the Supreme Court has the authority to examine the actions of the other branches of government and decide whether they are constitutional or not (Cornell University Law School). This brings up the question, are gay marriage bans unconstitutional?

In order to answer this query, it is important to examine the 14th Amendment to the U.S. Constitution. Part of that amendment consists of the Equal Protection Clause. According to Cornell Law, this clause means that “the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances” (Cornell University Law School). It is clearly evident that individual states can issue marriage licenses. The question is, are gay couples and straight couples equal in the eyes of the law in all states? The Supreme Court said no. In effect, this meant that gay marriage bans were in violation of the most important clause of the 14th Amendment. In order to effectively do its job, the Court ruled that gay marriage bans were unconstitutional. One benefit of this theory is the fact that the Supreme Court has had the power of judicial review since Marbury v. Madison. This means that it has long been the Court’s job to decide whether laws and practices are constitutional or not. On the other hand, one weakness that this school has is related to the fact that constitutionality is often in the eyes of the beholder. It is not always possible to reach a unanimous consensus regarding what is constitutional or not.

Theory #3: States’ Rights and Public Opinion

The third school of thought deals primarily with the actions of the states and the influence of public opinion. One popular argument evinced by gay rights advocates in the years before the Obergefell ruling was that if enough states legalized same-sex marriage on their own, there would be overwhelming pressure for the Supreme Court to legalize it nationwide (Freedom to Marry). In addition, according to the University of Missouri, many conservatives on the Court are in favor of states’ rights (University of Missouri—Kansas City). This fact can be helpful or detrimental. One theory states that if the states are legalizing gay marriage locally, then perhaps the Court should follow suit and legalize it nationwide. Another thought process, however, argues that the Court should leave the decision-making process to the states. This is why this theory/school can be used to effectively explain how the Supreme Court ruled in the Obergefell case. However, one simply needs to think of a ruling in which the Court ignored the wishes of the states, and/or public opinion, in order to call this theory into question. According to National Public Radio (or NPR for short), at the time the ruling was handed down, roughly 60% of Americans were in favor of legalized same-sex marriage (Chappell, 2015). This public pressure may have influenced the Court’s decision-making process.

It is important to further examine this school/theory. It is wise to note the fact that immediately before the Supreme Court’s Obergefell ruling was issued, exactly thirty-seven states had already legalized same-sex marriage, according to NPR (Chappell, 2015). Only thirteen states had gay marriage bans on the books at that time (Chappell, 2015). Of course, in order for this theory to be applicable, there should be a trend which would involve the Supreme Court historically respecting the wishes and actions of the states. One notable counterexample that can disprove the utility of this theory is the ruling in the infamous Roe v. Wade case. In that particular instance, the Court issued a ruling that legalized abortion nationwide. However, according to the Washington Post, immediately before the ruling, “44 states outlawed abortion in nearly all situations that did not threaten the life or health of the mother” (Kliff, 2014). This clearly shows that the Court does not always act with states’ rights in mind.

However, there is a Constitutional amendment that involves states recognizing the actions of other states. According to an influential and knowledgeable AP Government teacher, Cherie Eulau, this means that, for instance, a driver’s license issued by the state of California must be recognized in the state of New York (Eulau, 2009). The idea behind the Obergefell case is that Ohio should have been forced to recognize Maryland’s marriage license that was issued to the plaintiff, James Obergefell, and his late husband, John Arthur James (American Civil Liberties Union). Of course, public opinion likely also plays a role in affecting the Supreme Court’s decision-making process. It could very well be true that public pressure helped to force the Court to rule in favor of Jim Obergefell.

 Theory #4: Precedent and Stare Decisis

There are many theories as to why the Court ruled the way it did in the controversial Obergefell case. In order to fully explain the Obergefell ruling, it is important to further study how the Supreme Court makes controversial decisions. According to Jonathan Mott, Ph.D., a professor at the University of Oklahoma and Brigham Young University, the concept of stare decisis means that the Court typically lets previous rulings stand (Mott). This also means that the Court often looks at and relies on established precedents when issuing new rulings and opinions (Mott). Of course, this theory (or school) could very well explain why the Supreme Court decided to rule in favor of the gay plaintiff in the Obergefell case. Previous Supreme Court rulings indicate that there is (and was) a definite trend in favor of gay rights at the Court. If the Court utilizes past rulings when making decisions, then this theory could prove to be very accurate and helpful. However, the stare decisis theory has a weakness: with many civil rights issues, public opinion and the opinions of elected officials can tend to “evolve” over time. This would render previous Court cases inaccurate. One only needs to consider the example of Plessy v. Ferguson, which was a Supreme Court case that officially sanctioned segregation in the United States (History.com, 2009). The later ruling in Brown v. Board of Education completely did away with precedent by eliminating racial segregation altogether (History.com, 2009).

It is clear, however, that the Supreme Court often chooses to follow its own precedents. For instance, according to the American Bar Association Journal, in Romer v. Evans, the Court ruled in favor of gay people by deciding that Colorado could no longer forbid the extension of official protections to some LGBT individuals (Friedman, 1993, 49). According to a book written by Nicholas Pedriana and published by NYU press, in Lawrence v. Texas, the Court decided that laws that criminalize sexual intimacy by gay couples were violations of the Due Process clause of the 14th Amendment to the U.S. Constitution (Pedriana, 2009, 52). In United States v. Windsor, the Court decided that the extremely discriminatory federal Defense of Marriage Act was unconstitutional (Oyez). And finally, in Hollingsworth v. Perry and according to Oyez.org, a Court-related site founded by ITT Chicago-Kent College of Law, the Court decided that the petitioners did not have something called “standing” (Oyez). This basically meant that the earlier ruling that demolished Proposition 8 in California remained unchallenged. Proposition 8, of course, was an openly discriminatory law that prevented same-sex couples from getting married in California. It would seem that, going by these precedents, the Supreme Court may have been predisposed to rule in favor of various gay plaintiffs. Of course, it is important to examine why this precedent was even established. In every single one of the above cases, Justice Kennedy ruled in favor of gay people (Oyez). So without his valuable input, those precedents, in all likelihood, may not have even existed.

Theory #5: Justice Kennedy as a Swing Vote

Another school of thought that would explain how the Court made the Obergefell decision states that Kennedy’s role as a swing vote was crucial. Typically, Kennedy sides with the Supreme Court’s conservative bloc, but when processing many crucial gay rights cases, Kennedy has typically sided with the gay plaintiffs. Because the four liberal justices were already in support of gay rights (please see the aforementioned ideology-related argument), it was Kennedy who provided the vote needed to promote and legalize nationwide marriage equality. This school of thought makes sense because Kennedy typically is the swing vote on the Court. This gives him enormous amounts of power. However, one downside of this school is the fact that Kennedy does not have a perfect record when it comes to gay rights. According to Oyez, the previously mentioned website that specializes in discussing Supreme Court rulings, during the Hollingsworth case, Justice Kennedy did not choose to write the majority opinion (Oyez). This could indicate that he did not feel strongly about the necessity of demolishing Proposition 8. It is important, however, to acknowledge the fact that Kennedy did actually vote in favor of ending it; he just did not choose to write the majority opinion.

            It seems that this fourth theory, which concerns the actions of Justice Kennedy, is a very important and accurate theory; in other words, this school is extremely effective in explaining why and how the Supreme Court ruled as it did during the Obergefell case. Of course, precedent also likely played a role. So did the actions of the states and public opinion, the idea of judicial review, and ideology. However, according to AMERICAblog, a journal about U.S. politics, it seemed to be taken for granted that the four liberal justices would vote in favor of same-sex marriage, while it also seemed obvious that the four most conservative justices would vote against it (Green, 2015). Kennedy is typically the swing vote. This means that it is imperative that Justice Kennedy’s motivations be more closely examined.

It is apparent that Kennedy’s role as the Supreme Court’s swing vote was, and continues to be, crucial. To discover why Kennedy ruled as he did, it is important to closely examine his background. According to SupremeCourt.gov, Anthony Kennedy at one point had a private legal practice in San Francisco (Supreme Court of the United States, 2016). As many people know, San Francisco has a sizeable gay population, and it exists in the state of California, which is, as a whole, extremely liberal. In addition, according to SCOTUSblog, Kennedy seems to have demonstrated an affinity for rulings that aim to preserve and promote individual liberties and freedoms (Denniston, 2015). Of course, many people believe that gay marriage is about two people’s ability to exercise a certain freedom—namely the freedom to get married. Seen through this lens, same-sex marriage rights suddenly become one of the most urgent and pressing civil rights issues of our time.

It is important to note that Justice Kennedy has had a history of ruling in favor of gay rights. In each of the important gay rights-related cases previously mentioned, Justice Kennedy sided with the liberal wing of the Court, which has ruled in favor of various gay and LGBT+ plaintiffs (Oyez). In every single case, except for one, Hollingsworth v. Perry, he even authored the Court’s majority opinion. The majority opinion is basically a statement that outlines the legal reasoning for the Court’s various rulings (Mott). At first glance, it may seem that Kennedy was not promoting equality and freedom by neglecting to write the majority opinion for the Perry case. However, he still decided to side with one of the plaintiffs, Kristin Perry, who was unable to marry her longtime partner Sandy Stier because of California’s extremely discriminatory Proposition 8, which at one point prevented gay people in California from getting married (American Foundation for Equal Rights, 2016). Interestingly enough, however, if one examines the Perry ruling more closely, one may see that the Supreme Court did not directly destroy Proposition 8, but instead chose to leave standing a previous lower court ruling that had already demolished the proposition. If Justice Kennedy was trying to selectively create a legacy of being in favor of gay rights, he may have deliberately decided to attach his name to only majority opinions that directly benefitted gay people in a meaningful way.

It has already been established that Kennedy’s role as a swing vote is crucial whenever the Supreme Court makes controversial decisions. It is important now to ask again why Kennedy decided to side with the Court’s liberal wing when the Obergefell case was being considered. At this point, it is important to note that the Court’s decision-making process is typically shrouded in secrecy. One can only speculate about how it actually works. So the theories that follow are, of course, purely speculation. I can only make educated guesses about how Kennedy actually arrived at the decision that he did.

One reason, in my opinion, why Kennedy may have voted in the way that he did is the fact that the four liberal justices could have forcibly persuaded him. According to The University of Virginia School of Law, the justices on the Court typically define themselves in relation to one another (Wood, 2007). This effectively means that the ability to persuade is everything. The Court is not exempt from even the most basic forms of peer pressure, according to The University of Virginia School of Law (Wood, 2007). Every time a new justice is selected, the dynamics of the Court change (Wood, 2007). Gay rights are typically seen as a liberal issue, so this may be why Kagan, Sotomayor, Breyer, and Ginsburg all consistently vote in favor of LGBT rights and plaintiffs. If these four liberal justices were more persuasive than the four conservative justices, it is possible that Kennedy could not help but be influenced by these liberal individuals.

Another reason why Kennedy could have decided to rule in favor of Jim Obergefell and his late husband is the fact that Kennedy’s views on gay rights may have evolved over time. If one were to ask Kennedy’s opinion about the legalization of gay marriage ten years ago, he probably would have said that he was against it. Many influential individuals and politicians were against same-sex marriage at the time. President Obama himself “evolved” with respect to the gay marriage issue. In 2008, he was on the record as being in favor of civil unions for gay people but not full-fledged marriage (Bowers, 2012). In 2012, he changed his mind completely, and decided to call for the legalization of gay marriage nationwide (Bowers, 2012). This was, of course, after Vice President Biden gave an interview in which he, for the first time, stated that he was in support of the legalization of same-sex marriage, according to the Washington Post (Rucker, 2014). It is possible that Biden helped to convince Obama that being “pro-gay” is the right position to take, just as it is possible that the four liberal justices on the Supreme Court may have influenced the political opinions of Justice Kennedy, who is often a powerful swing vote. Of course, it is normal for the official positions and opinions of the Supreme Court to change over time, even if they aren’t technically supposed to. All one needs to do is compare the Plessy v. Ferguson and Brown v. Board of Education rulings. Over a span of fifty-eight years, the Court went from endorsing segregation to outlawing it completely.

As previously mentioned, it seems evident that Justice Kennedy may very likely have voted in favor of Obergefell because he wanted to craft a legacy of being in favor of gay rights. Think about it: did the authors of the influential Brown opinion know at the time that their votes would in the future be seen as crucial contributions to a civil rights movement? In 2015, according to one source, roughly 55% of Americans were in support of same-sex marriage, and 39% of respondents to Pew’s poll were not in favor of such nuptials (Pew Research Center, 2015). Fourteen years earlier, in 2001, 57% of Americans were opposed to same-sex marriage, and only 35% of respondents were in favor of it (Pew Research Center, 2015). This represents a dramatic sea change that occurred in less than fifteen years. Imagine how the American public’s view of same-sex marriage will change in the next fifteen years.

Of course, according to Stoutenborough, Haider-Markel, & Allen, the authors of “Reassessing the Impact of Supreme Court Decisions on Public Opinion: Gay Civil Rights Cases,” it is possible for the actions of the Supreme Court to influence public opinion instead of public opinion influencing those actions (Stoutenborough, Haider-Markel, & Allen). In 2013, California’s attorney general, Kamala Harris, decided to call gay rights one of the most important civil rights issues of our time during an interview on CNN (CNN). With this information in mind about the Court and public opinion, how could Justice Kennedy not want to craft a legacy for himself involving gay rights? His solid record of voting in favor of gay plaintiffs proves that he has such a legacy. Of course, if one had to pick a single Supreme Court case that would most exemplify the successes of the gay rights movement, it would be the Obergefell case. According to Enns and Wholfarth, the authors of a scholarly paper about the swing justice on the Supreme Court, Justice Kennedy could also have been disproportionally affected by public opinion, especially compared to the other justices (Enns and Wholfarth, 2013, 1095).

For years, important gay rights organizations such as the Human Rights Campaign (HRC) have focused on “marriage equality” almost exclusively (Miller, 2015). By “marriage equality,” the HRC means the ability for gays and lesbians to get married to each other, just like straight people do. The only other Supreme Court case that really dealt with gay marriage directly was the Hollingsworth case that involved the destruction of Proposition 8 in California. If Kennedy had to choose one case in which it would be most important to side with a gay plaintiff, it would most definitely be the Obergefell case.

According to Jonathan Mott, a previously mentioned professor at the University of Oklahoma, the Supreme Court’s majority opinions are very commonly referenced after they are issued (Mott). Not only did Justice Kennedy side with the liberal wing of the Court during the Obergefell case, he also chose to write the majority opinion. According to the Washington Post, the Obergefell verdict “is the latest ruling in which Kennedy has emerged as both the unparalleled and unlikely hero for gay rights” (Barnes, 2015). Gay rights organizations such as the HRC have lavished praise on Kennedy, especially after the Obergefell ruling was handed down, according to the New York Times (Liptak, 2013). In addition to being the recipient of this praise and admiration, Kennedy is assured his place in history. As presidential candidate and former Secretary of State Hillary Clinton has said, “gay rights are human rights” (Capehart, 2011).

When studying the Supreme Court’s decision-making process, it is important to consider any relevant theory that would explain how the Court handles sensitive “culture war” issues. Each and every theory has its strengths and weaknesses. The first school focuses on ideology. The second focuses on constitutionality and judicial review. The third theory that was examined involves the idea of states’ rights and influence of public opinion. Many Court watchers believe that the current, slightly conservative, Court is typically in favor states’ rights. The Obergefell ruling makes more sense then, because in the year that it was handed down, many states had already legalized same-sex marriage on their own. The fourth theory, or school of thought, involves precedents and stare decisis. The general idea is that the Court relies on past decisions to help make current and future ones. The fifth and last school involves the idea of Justice Kennedy as a swing vote whose power grows whenever a controversial case arises. It is evident that this fifth school, like all the other schools, is extremely relevant and applicable.

When it comes down to it, the Supreme Court largely has four liberal justices and four conservative justices. It is nearly impossible to have a split verdict, and so, as was already said, this makes the swing vote, Anthony Kennedy, extremely influential. Ultimately, regardless of internal and external pressures, many of which have already been documented in this paper, each justice can formulate his or her or their own opinions. Justice Kennedy seems to have wanted to craft a legacy of being in favor of gay rights, and this is probably why he has consistently ruled in favor of various gay plaintiffs, even though he is fairly conservative and was appointed by Republican Ronald Reagan. It seems to be clear that Kennedy saw the chance to do the right thing and seized it. If gay people are at the center of one of the biggest the civil rights issues of our time, then Justice Kennedy is a champion of these rights, and by extension, he is also one of the champions of a movement that involves justice, fairness, and equality. The Obergefell case is very illustrative because it offers an important glimpse into how the Court makes controversial, and extremely important, decisions having to do with classic “culture war” issues. Ultimately, I feel that each and every theory that was previously mentioned helps, in its own way, to explain how the Supreme Court processed the Obergefell case.

My Research Methods

            As previously mentioned, my project involves examining how the U.S. Supreme Court makes controversial decisions having to do with sensitive “culture war” issues. In order to determine how these decisions get made, I decided to conduct a case study. Typically, I believe that the Court relies on ideology to make important decisions. This is not the only relevant and important theory, however. The Obergefell case involved a gay plaintiff, and it eventually led to the legalization of same-sex marriage nationwide. The swing vote during the case, Justice Kennedy, typically sides with the conservative bloc on the Court; however, during the Obergefell case, he sided with the liberal wing. That fact largely disproves the widely-held belief that only ideology plays a major role in the decision-making process of the Supreme Court whenever it considers controversial cases having to with important “culture war” issues. Because of this, the case study that I am conducting can be called a theory-infirming case study.

            In order to study why the Court ruled as it did during the Obergefell case, I conducted electronic research under the tutelage of Professor Heldman. I outlined five schools of thought that could, together, describe the Court’s decision-making process. As previously mentioned, the first school, or theory, involves the importance of ideology. The second involves the idea that the Court was just doing its job, which involves examining the constitutionality of various laws. The third school involves the idea that widespread legalization of same-sex marriage by the states, as well as the influence of public opinion, prompted the Court to act. The fourth theory states that the Court relies on precedent when making controversial decisions, and the fifth and final school states that Anthony Kennedy’s role as a swing justice was crucial when the Obergefell case was being considered.

            I chose to study Obergefell because I believe it is unique. The Obergefell ruling seems to indicate that, contrary to popular belief, ideology does not always play an exclusive role in the Court’s decision-making process, at least when it considers some controversial “culture war” related cases. Also, as a gay man, I find the issue of same-sex marriage to be quite relevant, intriguing, and inspiring, for myself and others. I am using the Obergefell case as jumping-off point to study how the Court makes some of its most controversial, and influential, decisions. A case study typically involves conducting in-depth investigations of people or groups (McLeod, 2008). Because of this, case studies can tend to yield information that is very detailed and informative (McLeod, 2008). I plan on using this information to better understand the Supreme Court and its various decision-making processes.

Controversial Supreme Court Decisions and Ideology: An Analysis

            It is apparent to me that whenever the Supreme Court considers a case having to do with a controversial “culture war” issue, ideology typically plays a role. However, as mentioned previously, ideology is not always the only factor that influences the Court’s decision-making process. Until very recently, there were five conservative justices and four liberal justices on the Court. Typically, Justice Kennedy, who is usually the swing vote, sides with the other four conservative justices on the Court when processing most cases. During the controversial and groundbreaking Obergefell case, however, Justice Kennedy sided with the liberal wing. This fact partially disproves the idea that ideology always plays a critical role, because it is likely that Justice Kennedy decided to vote to establish nationwide marriage equality because he wanted to craft a legacy for himself having to do with supporting gay rights and being “on the right side of history”—in other words, it is evident that wanted to do what he thought was the right thing, regardless of ideology.

            In order to perform this case study, it is important to focus on Obergefell specifically. As previously mentioned, because of the nature of this case, the study becomes a theory-infirming case study. A theory-infirming case study is a study that disproves a dominant theory. In this case, the dominant theory is the fact that ideology typically plays a singular role whenever the Supreme Court considers cases having to do with controversial “culture war” issues. The Obergefell case largely proves this theory to be false. A case study, by the way, as previously mentioned, typically involves closely examining an individual or group in order to reach a certain conclusion. This is the perfect technique to either prove or disprove the hypotheses about the Court’s decision-making process, at least with respect to the Obergefell case specifically.

            It is important to note that in this scenario, the independent variable is the ideology of the various justices, and the dependent variable is the actual ruling. By independent variable, I mean that factor that does the influencing, and by dependent variable, I mean the factor that is influenced. If we apply all of this information to the Obergefell case, however, the hypothesis that ideology is typically the only factor in the Supreme Court’s decision-making process is largely disproved. This is because Justice Kennedy typically sides with the conservative wing of the Court. During the hearing of the Obergefell case, however, Justice Kennedy sided with the liberal wing. This means that it is probably important to consider other significant factors that typically come into play whenever the Court hears and considers a case having to do with a sensitive “culture war” issue. Clearly, ideology wasn’t the only reason why the Court ruled as it did in the Obergefell case, although it most definitely played a role, especially for the justices on the Court who were, and still are, not typically swing justices.

            If the theory having to do with ideology is to be studied and included, then it is important to examine other important key variables as well. As previously mentioned in my literature review, there are five possible theories that explain how the Court makes difficult decisions. For the purposes of this essay, I am choosing to specifically apply these various theories to Obergefell. The hope is that the lessons learned from Obergefell can also be applied to other Supreme Court cases. This would make it much easier for the general public to understand the inner workings of the Supreme Court. It is evident to me that each and every school of thought is illustrative in its own way. When we add them all together, we discover that they most definitely work in concert to explain how the Court typically makes certain controversial decisions.

            The first theory primarily has to do with ideology. It is important, at this point, to reiterate the fact that there were four liberal individuals and five conservative justices on the Supreme Court at the time the Obergefell ruling was handed down. It is evident to me that Ginsburg, Sotomayor, Breyer, and Kagan all sided with Obergefell due to reasons of ideology. All four of them tend to be fairly liberal. Of course, it is also possible that they saw same-sex marriage as an important civil rights issue, in the same way that Justice Kennedy likely did. Same-sex marriage remains a largely liberal issue, however. It is quite likely that that may change with time. Likewise, with the four most conservative justices, ideology likely played a role as well. Conservatives stereotypically are less in favor of same-sex marriage than other liberal individuals. Please see the attached chart for more details about the Justices’ ideologies and constitutional interpretations.

The second theory, as mentioned in the previously written literature review, involves the idea that it is the Court’s job to decide whether certain laws are constitutional or not. This idea of judicial review was first considered during the Marbury v. Madison case in 1803. That was one of the Court’s very first cases. It is probably safe to say that every justice keeps in mind the idea of constitutionality when he, she, or they make decisions. One key problem is the fact that there is nothing at all about same-sex marriage in the Constitution. Gay rights were not in vogue at all at the time when the Framers authored this important document. Ultimately, when they decided the case, five Supreme Court justices (a majority) believed that the Equal Protection Clause of the 14th Amendment to the Constitution was violated by various gay marriage bans across the country. One problem with the Constitutionality theory is that when the Constitution doesn’t mention an issue or law specifically, it is typically up to the Justices to extrapolate. Everyone usually views the Constitution differently, however. Obviously, if the Constitution was clear on the issue of same-sex marriage, there would probably have been less conflict on the Court when it was considering Obergefell.

            In order for this theory to be truly reliable, every justice would have to read the Constitution in the exact same way. This is largely impossible. Some people read the Constitution word for word, and others view it as a “living document” that adapts as different people examine and interpret it. According to National Public Radio, Justice Scalia was what one could call an “originalist”—in other words, he believed that the Supreme Court should interpret the Constitution in the way that the original Framers intended for it to be interpreted (Seabrook, 2011). Justice Breyer, on the other hand, is typically known as a “pragmatist,” which is someone who believes that the ideas of the Framers need to be molded in order to integrate successfully with modern society (Seabrook, 2011). The other seven justices fall somewhere on the spectrum between originalism and pragmatism. According to my research, Justice Thomas is an originalist, and Kennedy is a legal pragmatist (University of Missouri; George, 2014). Sotomayor is a legal realist, which means that she typically believes that the justices on the Court cannot always be completely impartial (Dorf, 2009). John Roberts is a proponent of selective minimalism, which means that he believes in judicial impartiality, and Justice Alito is a textualist, which typically indicates that he desires to rely heavily on original texts such as the Constitution when formulating opinions (Silagi, 2014; Davis, 1984). Justices Ginsburg and Kagan are proponents of the Living Constitution school, which means that they believe that the Constitution typically adapts to the times as they change (Ballotpedia; Holloway, 2010).

I would just like to point out that at one time, the Constitution was much more of a fiercely in-egalitarian document than it is now. Slavery was condoned, and women weren’t allowed to vote. The Supreme Court was clearly also different shortly after the time of the nation’s founding than it is today. The Constitutionality theory also ignores the fact that the justices on the Court aren’t living in a vacuum. They are living, breathing, American citizens who experience real political and interpersonal pressures. In my opinion, it is impossible for any judge of any kind to be completely objective when deciding the constitutionality of a case.

Another theory involves the idea that the actions of states, as well as the idea of states’ rights, typically play a role in the Supreme Court’s decision-making process. Public opinion is involved in this theory as well. The primary strategy of the gay rights groups after the Perry decision, which eliminated Proposition 8 in California, was to press for the passage of gay marriage legislation in several different individual states. The idea was to spend a few years doing this, and then, once a critical mass of states had legalized same-sex marriage, the goal was to return to the Supreme Court and ask the Justices for a blanket decision that would legalize gay marriage nationwide. This is largely what happened, except for the fact that the Supreme Court ended up legalizing same-sex marriage much more quickly than many Court-watchers had originally anticipated. This could be due to the fact that public opinion has rapidly shifted in favor of same-sex marriage.

            Of course, in order for this theory to be valid, one would expect to find a particular pattern in the Court’s decision-making process. Conservatives are typically in favor of states’ rights, especially when compared to the rights of the federal government. If this is truly the case, then why did Kennedy, a largely conservative justice, choose to side with the liberal wing of the Court when the Obergefell ruling was handed down? By the time the Obergefell case was being considered by the Court, a majority of U.S. states had already legalized same-sex marriage. The states had clearly embarked on a trajectory that involved expanding civil rights for LGBT+ individuals. If this was truly the case, then the justices on the Court were largely following the wishes of the states by ruling in favor of the plaintiff, Jim Obergefell. This begs the question, why didn’t more conservative justices rule in favor of Obergefell, if they were and are truly in favor of states’ rights? The fact that they did not may partially prove that this school of thought is not the most effective at explaining how the Court ruled in this particular instance.

            A fourth theory that would explain how the Court decided the Obergefell case deals with the idea of judicial precedents and the concept of stare decisis. Stare decisis basically means that the Court utilizes its previous rulings to help make current ones. As I previously mentioned in the literature review, there is a definite trend in favor of gay rights at the Supreme Court. Of course, it is simply not satisfactory to just leave things at that. The most important question to ask in this scenario, is, in my opinion, how and why did this important trend start? If one examines the Court’s previous rulings carefully, as I have attempted to do, it becomes clear that, once again, Justice Kennedy has been the swing vote. By previous rulings, I mean the Romer v. Evans ruling, the Lawrence v. Texas ruling, the United States v. Windsor ruling, and the Hollingsworth v. Perry ruling. These rulings were further elaborated upon in the literature review. Typically, however, Kennedy tends to be conservative, but during the decision-making aspect of almost every important gay rights case, he has sided with the liberal wing on the Court. If it weren’t for Kennedy, the Court’s solid record with respect to gay rights would probably not even exist. Every precedent has to start somewhere, and this one seems to have started with Justice Kennedy.

            Also, to continue with the argument that this theory is relevant but not all encompassing, it is important to delve further into the Court’s decision-making process with respect to these precedent-setting cases. If the Court was solely focusing on precedent when making its decisions, then why was same-sex marriage not legalized earlier than 2015? In 2013, during the oft-cited Perry case, the Court indirectly invalidated Proposition 8, which was a discriminatory law on the books in California that prevented gay people from getting married. At that time, why didn’t the Court go one step further, and legalize same-sex marriage nationwide? I believe that this occurred because the Court felt that the country was not yet ready for such a legalization. It is, of course, impossible to know for sure because the inner workings of the Court are shrouded in secrecy. However, it is clear that Justice Kennedy was, and is, the typical swing and deciding vote on the Court.

            It is apparent to me that the fifth, and final, alternative theory and independent variable, having to do with Justice Kennedy as the swing vote, is extremely potent and applicable in this scenario. If one were to examine the Court’s decision-making processes very carefully, one may conclude that each of the previously mentioned alternative theories can be applied to the idea of Kennedy being an influential swing vote. It is clear that Kennedy possibly saw gay marriage bans as unconstitutional. It is also clear that a majority of states had legalized same-sex marriage by the time the Supreme Court had decided to effectively legalize it nationwide. And finally, there was a precedent of being in favor of gay rights at the Court because Kennedy himself helped to establish that precedent. Increasing public support for gay marriage was also probably very influential with the Court at the time.

            As has been previously mentioned, there are multiple reasons why Kennedy may have chosen to side with the liberals on the Court while processing the Obergefell case. The most important theory, to me, involves the idea that Kennedy wanted to craft a legacy for himself, which would involve being in favor of gay rights. This idea was very frequently mentioned by the press after the Obergefell decision was handed down. Kennedy typically sides with the conservatives on the Court; during Obergefell, he did not do so. Why was this the case? I can only speculate, but clearly Kennedy could have felt that the issues presented by Obergefell transcended ideology and party lines. The data clearly indicate that Justice Kennedy has consistently voted in favor of gay rights. So have the four liberal justices on the Court. The four other conservative justices have not done so. I firmly believe that any vote that can be construed to be against gay people will go down in history as being wrong and prejudicial. It is likely that Kennedy could have felt the same way. If you think about it, almost no issue has consistently separated Kennedy from his conservative brethren as much as gay rights potentially has. This trend is evident after one examines the gay rights-related cases that the Supreme Court has previously considered.

            Kennedy clearly has a unique role on the Court when it comes to defining the rights of LGBT+ individuals. It seemed to be obvious that the four liberal justices on the Court would always be in favor of gay rights. This connects back to the ideology-related hypothesis. During Obergefell, the liberal justices just needed one of the conservative justices to join their side. It was apparent that any conservative justice who did so would instantly be viewed as a hero who helped facilitate the extension of crucial civil rights to disenfranchised gay individuals. Kennedy was apparently happy to fill this role. Because of this, it is indicated that he is more widely associated with advancing gay rights than any other individual justice on the Supreme Court. This is a very advantageous legacy to cultivate. Each and every time we grant important civil rights to key individuals, we learn a little bit more about how to include everyone in our diverse and ever-changing society. The Supreme Court that disbanded racial segregation in U.S. public schools in the fifties is widely lauded today. Kennedy must have known that he would be lauded for voting for gay rights, which is very likely probably why he did so. Also, he probably also just wanted to do what he saw was the right thing.

Of course, as previously mentioned, the inner workings of the Supreme Court are not usually revealed to most outsiders. Because of that fact, it is important to fully utilize the limited information that we currently have at our disposal. We have transcripts of the oral arguments in the Obergefell case, as well as the written majority and dissenting opinions. It is important to use this information to try to discover why Justice Kennedy, the swing vote, truly decided to side with the four liberal justices in this instance. Of course, it is important to note that not only did Justice Kennedy decide to side with the proponents of marriage equality on the Court, he also wrote the majority opinion for the Obergefell case. Clearly, Kennedy was and is proud of voting to allow gays and lesbians to go ahead and get married, just like straight couples previously could and still can. In the majority opinion, which he authored, he seemed to stress the importance of marriage as an institution, as well as the impact marriage has on children. I quote: “Excluding same-sex couples from marriage…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” (Soergel, 2015)[1].

It is obvious to me, because of this statement, that Kennedy knew that many gay couples were (and are) raising children. In the majority opinion, he seemed to argue that same-sex marriage bans were damaging to those children. It is one thing to exclude gay couples from the institution of marriage, and it is of course another to make the children of gay couples feel inadequate. Both of those practices seem to be immoral and even unconstitutional, according to Justice Kennedy. I now wish to present another quote from the Obergefell majority opinion, one that has become famous and well-known ever since it was distributed to the press and the world at large by the Supreme Court. It is as follows:

“As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure…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” (Soergel, 2015).

That quote seems to basically encapsulate Kennedy’s views about LGBT+ individuals and the institution of marriage. In it, Justice Kennedy has linked same-sex marriage to the ideas of equality, love, dignity, and loyalty. It is clear to me that if he truly felt this way about gay couples, he could not help but side with the more liberal individuals on the Court who were already supposedly “pro-gay” to begin with. Of course, during the oral arguments for Obergefell, many of the conservative justices also discussed the issue of children, stating that gay individuals should not be able to get married because they cannot produce biological children (Barbash, Berman, & Somashekhar, 2015). However, one key weakness of that argument was the fact that many older heterosexual couples who cannot produce children can typically get married, even as gay couples previously could not.

In the dissenting opinions, the four justices who voted in favor of the defendant stated that, among other things, it wasn’t the Supreme Court’s place to legislate about the nature of marriage (Lerner, 2015). According to Drobak and North, “the dominant model of judicial decision-making is an outgrowth of rational choice theory” (Drobak & North, 143). I interpret this to mean that judges are rational actors who can act objectively and correctly. This theory seems to be full of holes, however, because I believe that human beings occupying positions of power can rarely be completely and totally objective. According to Richard Seamon, the “attitudinal model” is frequently more applicable than the model that was previously discussed. This model is the opposite of the one proposed by Drobak and North—essentially, it states that judges actually rely on their individual biases and ideologies when making important decisions (Seamon). The “attitudinal model” may serve to explain why four of the justices on the Supreme Court decided to rule against nationwide gay marriage. It is entirely possible that these justices believed in the power of states’ rights, and felt that that cause was more important than a wide ruling which would legalize same-sex marriage nationwide. It is also possible that their shared conservative ideology is responsible for the way they chose to handle the controversial Obergefell case.

Overall, during the process of writing this paper, I discovered that ideology typically plays a crucial role whenever the Supreme Court considers a controversial case. However, this is not the only important factor. The tried-and-true hypothesis that relies on the party affiliations of the justices to explain how they rule of course is relevant, at least with regard to the Obergefell case. If one were to think further about it, however, they would probably realize that any scenario when five justices support a liberal cause or issue technically shows that ideology is not always the most important factor. This is because, up until recently, the Court had five conservative justices and four liberal justices on it. There are other examples where a conservative justice defected, most notably the seminal health care-related ruling in 2012 in which Chief Justice John Roberts sided with the liberal justices on the Court in upholding the constitutionality of Obamacare (Siddiqui, 2012).

            The ideology theory that aims to explain the inner workings of the Supreme Court labels the Court’s various rulings as the dependent variable and calls ideology the independent variable. In this scenario, the hypothesis typically involves the idea that ideology is the primary indicator of how the various justices on the Court will vote. Once we accept the fact that that hypothesis is not the only available explanation for the Court’s behavior, a whole new realm of potential independent variables opens up. These variables include the relevance of the idea of judicial review, the importance of the actions and rights of the states and public opinion, the importance of precedent, and the actions of Anthony Kennedy as a swing justice who is largely in favor of gay rights. After reviewing all the information, it becomes clear to me that the philosophy, goals, and actions of Justice Kennedy are extremely important when it comes to discovering how the Court decided the controversial and ground-breaking Obergefell case. All the relevant theories, of course, work together, in my opinion, to help explain the Supreme Court’s behavior as a whole.

Conclusion

During the process of writing this paper, I learned a lot of information about the Supreme Court and how it makes decisions in cases having to do with controversial “culture war” issues. The specific “culture war” issue that I decided to discuss in depth is same-sex marriage. Ever since the summer of 2015, same-sex (or gay) marriage has been legal throughout all fifty U.S. states, because of the way the Supreme Court decided to rule in the controversial Obergefell case. Throughout the course of this paper, I have put a tried-and-true hypothesis about the Supreme Court to the test. This hypothesis involves the idea that ideology almost always plays a crucial role whenever the Supreme Court considers a controversial case. The Obergefell case, specifically, has served to disprove the idea that this oft-cited hypothesis is the only relevant explanation. During the summer of 2015, when the case was being considered by the Court, there were five conservative and four liberal justices present. If one were to utilize the ideology hypothesis in this scenario and call Anthony Kennedy a conservative justice, it would seem that the Court would have had to rule against the plaintiff, preventing nationwide access to legal same-sex marriage. For the purposes of evaluating this hypothesis, I am calling same-sex marriage a liberal issue.

            The very fact that the Court ruled in favor of Obergefell proves that the behavior of the Court is more nuanced than one would typically think. Justice Kennedy was the swing vote during the case. Because this particular case “broke” the hypothesis that only ideology plays a crucial role, it was important for me to consider other, alternative, hypotheses about how the Court makes decisions. As mentioned previously in this paper, I considered exactly four alternative explanations for how the Court makes controversial decisions. The first alternative theory involved the idea of constitutionality, the second theory involved the idea of states’ rights and public opinion, the third theory involved the importance of precedent, and the fourth theory involved the idea of Anthony Kennedy as a crucial swing justice. In the end, it was proven that each and every theory was, and is, didactic in its own way.

            Throughout the course of writing this paper, I speculated that it was very likely that Justice Kennedy sided with the plaintiff Obergefell because he wanted to craft a legacy for himself of being in favor of gay rights. This makes sense especially if one considers gay rights to be the greatest civil rights issue of our time, as many people (including myself) largely do. Ultimately, I believe that same-sex marriage was on its way to becoming legalized nationwide already, before Obergefell. Kennedy just seized the chance to associate his name with a popular movement whose gains were, and still are, almost inevitable. Of course, it is also likely that Kennedy found gay marriage to be an issue that was (and is) about equality, dignity, and love. Anyone who sees same-sex marriage in this way is practically bound to vote in favor of it. So whether Kennedy evolved, wanted to do the right thing, or wished to craft a legacy, it is clear that his vote in favor of the plaintiff in Obergefell was a deciding factor that helped to enable the legalization of same-sex marriage throughout the entire United States.

My findings are important because they help people to understand how the Supreme Court makes controversial decisions. As previously mentioned, the Supreme Court as an institution is not very transparent. Ultimately, however, it is clear to me that multiple factors determine how the Court makes each important decision. It will be interesting to see how the dynamics of the Supreme Court change now that Justice Scalia is no longer with us. Now, there are four fairly liberal justices, and four fairly conservative ones. Republicans in Congress are attempting to block any Supreme Court nominee that President Obama chooses, in an effort to prevent what was once a conservative Court from becoming a liberal one. It is apparent to me that every little tidbit of information one can learn about the Court is usually relevant in determining how that body makes its important decisions. If I were to conduct further research, I would want to know how the Court’s decision-making process changes when it has only eight justices. I would also want to know how the ideology hypothesis fares when dealing with a liberal court instead of a conservative one. Of course, I am assuming that if Obama successfully nominates a new Supreme Court justice, the Court will head in a liberal direction.

            Now that nationwide marriage equality has been achieved, other important goals of the gay rights movement are already in the process of becoming reality. It is important to note that when discussing gay rights, gay issues, and the “gay agenda,” every branch of the U.S. government is applicable and relevant. The Supreme Court is the institution that brought us nationwide gay marriage, and it is very possible that Congress will give us national anti-discrimination legislation. Currently, the Employment Non-Discrimination Act of 2013 (or ENDA, for short) is being considered by Congress. This Act is designed to “to prohibit employment discrimination on the basis of sexual orientation or gender identity” (Merkley, 2013). If the Act passes, any employer in any U.S. state will be breaking the law if they fire someone for being gay.

            Ultimately, it is clear to me that when considering the Obergefell case, the Supreme Court did the right thing by establishing nationwide marriage equality. When gay people win, everyone wins. In 2015, it was a good year to be gay, and it was also just a good year to be an American. I have never been more proud of my country, and I am happy to say that the institution of marriage was strengthened mightily the day that that ruling came down.

 Appendix:

Memorable Quotes From the Obergefell Ruling

JUSTICE KENNEDY

“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.”

“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.”

“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.”

“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…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.”

“Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.”

 “Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser.”

“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.”

“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.”

“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.”

“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.”

JUSTICE ROBERTS

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

“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.”

“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.”

 “Over and over, the majority exalts the role of the judiciary in delivering social change.”

“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.”

JUSTICE SCALIA

“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.”`

“[W]e 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.”

“A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

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

 “The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law.”

“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.”

JUSTICE ALITO

“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. This development undoubtedly is both a cause and a result of changes in our society’s 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. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”

“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.”

JUSTICE THOMAS

“In our society, marriage is not simply a governmental institution; it is a religious institution as well. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples. The majority appears unmoved by that inevitability.”

“[T]he Constitution contains no ‘dignity’ Clause, and even if it did, the government would be incapable of bestowing dignity.”

“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.”

NOTE: If you wish to see the Works Cited for this essay, please feel free to email me.