Or is it rather, as some of us have long argued, that the Constitution protected that right for nearly a century and a half, like the right to same‐sex sodomy (Lawrence v. Texas), to interracial marriage (Loving v. Virginia), to sell and use contraceptives (Griswold v. Connecticut), to integrated public schools (Brown v. Board of Education), to educate one’s child in a parochial school (Pierce v. Society of Sisters), and, dare I say, to freedom of contract in employment (Lochner v. New York)?
Indeed, several conservatives wasted no time in pressing the distinction between what the law is and what the court says it is — aiming to justify the refusal by some state officials to enforce the court’s reading. That long‐standing enforcement issue won’t be resolved here.
But while Obergefell v. Hodges is still fresh in mind, we can shed a bit of light by looking briefly at the reasoning on both sides, neither of which was covered in glory. And it turns out that Justice Anthony Kennedy, toward the end of his opinion, stumbled on the truth of the matter, even if it’s unclear whether he fully noticed it. The basic jurisdictional difference between the two sides was over who decides. The regulation of marriage resting from time immemorial with the states, the four dissenters, in their separate opinions, would have left it there, letting states decide whether to recognize same‐sex marriage.
Citing several precedents, the majority rightly found that power limited by the 14th Amendment, however vague and incomplete its reasoning. Kennedy cited four “principles and traditions” that he believed made marriage a “fundamental right” under the liberty the due‐process clause protects, and those reasons, he argued, apply equally to same‐sex couples. But as Justice Clarence Thomas noted, that clause merely prohibits states from restricting one’s liberty. Same‐sex couples remain free to marry. What they want is the state’s positive recognition, and the entailed legal benefits.
Properly, then, Kennedy’s conclusion belongs not under the due‐process but under the equal‐protection clause. If a state recognizes marriage and affords its benefits, it cannot discriminate against same‐sex couples unless it has a very good reason, like absence of consent due to age or infirmity.