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<\/a>Rainbows abounded on the morning of Friday, June 26, 2015, when the United States Supreme Court held<\/a> 5-4 that same-sex couples have a constitutional right to marry and a right to have their legal marriages recognized in every state.<\/p>\nThe Court\u2019s decision in Obergefell v. Hodges<\/em> was not unexpected<\/a>. The divide in the Court, too, was not unexpected: Justice Anthony Kennedy wrote the majority opinion for himself, Justice Stephen Breyer, Justice Ruth Bader Ginsburg<\/a>, Justice Elena Kagan, and Justice Sonia Sotomayor.<\/p>\n (An interesting side note: Justice Kennedy, a 1988 Reagan nominee<\/a>, has authored all four of the major SCOTUS cases on lesbian, gay, bisexual, and transgender (LGBT) rights: Romer v. Evans<\/a>, Lawrence v. Texas,<\/a> United States v. Windsor<\/a><\/em>, and now Obergefall v. Hodges<\/em>. As well, three of those cases were handed down on June 26<\/a>\u2014Lawrence<\/em> on 6\/26\/03; Windsor<\/em> on 6\/26\/13; Obergefell<\/em> on 6\/26\/15).<\/p>\n When I first read the Obergefell<\/em> decision, I found myself skeptical. Make no mistake: I fully agree with and welcome the holding. However, I was concerned about the Court\u2019s reasoning. My first thought, upon reading the opinion, was to wonder why the Court did not base its holding more on the Equal Protection Clause, like Judge Richard Posner did in his opinion in Baskin v. Bogan<\/a><\/em>, 766 F.3d 648 (7th Cir. 2014). That seemed to me to be the easiest argument. There is simply no compelling justification for the State to distinguish between opposite-sex and same-sex couples when it comes to marriage.<\/p>\n So, when I got to Chief Justice John Roberts\u2019 dissent, it initially made some sense to me, and I could envision its appeal to many others.<\/p>\n But before addressing Chief Justice Roberts\u2019 dissent in more detail, I will provide a summary of the Court\u2019s majority opinion. The majority opinion bases its holding primarily on Fourteenth Amendment substantive due process, affirming marriage between two people, whatever their sexual orientation, as a fundamental liberty right.<\/p>\n The Court began by providing some history on the primacy of marriage to society and family, acknowledging that the historical understanding has been that marriage was between one man and one woman. While respondents, Justice Kennedy writes, believe this history \u201cshould be the end [of these cases],\u201d Justice Kennedy says this \u201chistory is the beginning\u201d (slip op at 4). \u201c[I]t is the enduring importance of marriage that underlies the petitioners\u2019 contentions,\u201d Justice Kennedy writes, and petitioners\u2019 \u201cimmutable nature dictates that same-sex marriage is their only real path\u201d to enjoy the \u201cprofound commitment\u201d of marriage (slip op at 4).<\/p>\n While marriage has been considered from society\u2019s beginnings a central societal institution, Justice Kennedy reminds us that it has changed over time. In fact, \u201c[t]he history of marriage is one of both continuity and change\u201d (slip op at 6), even when we examine it as between opposite-sex couples. (And here we see a bit of Justice Ginsburg coming through<\/a>.) For centuries, marriage was more about family and social ties, not love. Families arranged marriages between their children based on \u201cpolitical, religious, and financial concerns\u201d (see slip op at 6). By the time of the country\u2019s founding, marriages were largely considered voluntary contracts (though it\u2019s probably fair to say that even then and thereafter, families wielded much influence on who married whom likely for some of the reasons quoted above). Even though marriages were considered voluntary contracts, women in those marriages lost their individual rights because of the law of coverture. A married woman became one with her husband; \u201ca married man and woman were treated by the State as a single, male-dominated legal entity\u201d (slip op at 6). Coverture was abandoned as women gained<\/a> legal, political, and property rights.<\/p>\n These changes, the Court says, \u201cwere not mere superficial changes. Rather, they worked deep transformations in [marriage\u2019s] structure, affecting aspects of marriage long viewed by many as essential\u201d (slip op at 6-7). But, the Court says, these changes strengthened, not weakened marriage.<\/p>\n 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 (slip op at 7).<\/p><\/blockquote>\n Such has been the case with LGBT rights. Homosexuality was considered a psychiatric disorder until 1973, and same-sex intimacy had been criminalized until well into the 20th century. Only in more recent years has the psychiatric field (and others) recognized \u201cthat sexual orientation is both a normal expression of human sexuality and immutable\u201d (slip op at 8).<\/p>\n Beginning in the mid-1990s, various state courts and legislatures, and Congress itself, began cordoning off marriage as a union between only one man and one woman. Some states, though, began shifting away from the traditional one-man\/one-woman marriage dyad, either through their legislatures or courts. (See slip op at 7-10, detailing history of legality of same-sex intimacy.) The majority opinion contains appendices that comprehensively list the cases and legislative acts that either address or legalize same-sex marriage. (See slip op at 29-34.)<\/p>\n Thus, in the latter couple of decades of the 20th century and into the 21st, same-sex couples saw many legislatures and courts openly deny them the right to marry\u2014a right they saw as basic and fundamental\u2014while in some cases throwing them crumbs by way of allowing \u201ccivil unions\u201d or \u201cdomestic partnerships,\u201d gestures that, while better than no recognition, surely accorded their relationships secondary status, if they were lucky enough to live in a state that allowed even those.<\/p>\n The majority\u2019s opinion is, as I said earlier, grounded in the Fourteenth Amendment\u2019s Due Process Clause. As the Court has held in previous cases, the liberties protected by the Constitution extend beyond those specifically enumerated in the Bill of Rights and include \u201ccertain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs\u201d (slip op at 10). And, the Court continues, it is \u201can enduring part of the judicial duty to interpret the Constitution\u201d to identify and protect those fundamental rights\u2014and requiring the states to protect them (slip op at 10). The Court explains that identifying fundamental rights does not depend on a set formula, but requires it \u201cto exercise reasoned judgment,\u201d including examining history and tradition, but, says Justice Kennedy, history and tradition \u201cdo not set [the] outer boundaries [of the inquiry]\u201d (slip op at 10-11).<\/p>\n The right to marry, although not specifically listed in the Bill of Rights or the Constitution, has long been held as protected as a fundamental right, though precedent has dealt solely with opposite-sex couples. The Court gives four \u201cprinciples and reasons\u201d that show why \u201cmarriage is fundamental under the Constitution\u201d and why such principles and reasons \u201capply with equal force to same-sex couples\u201d (slip op at 12). Those four principles and reasons are as follows: 1) \u201cthe right to personal choice regarding marriage is inherent in the concept of individual autonomy\u201d (slip op at 12); 2) \u201cthe right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals\u201d (slip op at 13); 3) marriage \u201csafeguards children and families and thus draws meaning from related rights of childbearing, procreation, and education\u201d (slip op at 14); and 4) the \u201cCourt\u2019s cases and the Nation\u2019s traditions make clear that marriage is a keystone of our social order\u201d (slip op at 16). (See slip op at 12-17 for more detail on each principle and reason.)<\/p>\n The Court finds no basis to conclude that these principles and reasons cannot and do not apply to same-sex couples. To exclude such couples, the Court says, \u201cimpose[s] stigma and injury of the kind prohibited by our basic charter\u201d (slip op at 18).<\/p>\n To respondents\u2019 claim that the petitioners wanted not the right to marry, but \u201ca new and non-existent \u2018right to same-sex marriage,\u2019\u201d the Court dismisses the idea that the Due Process Clause requires such specificity. For example, the Court notes,<\/em> Loving v. Virginia<\/a><\/em> \u201cdid not ask about a \u2018right to inter-racial marriage\u2019\u201d (slip op at 18). Rather, Loving<\/em> (and other marriage cases) were about \u201cthe right to marry in its comprehensive sense\u201d (slip op at 18).<\/p>\n 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 right once denied. This Court has rejected that approach . . . . (slip op at 18).<\/p><\/blockquote>\n While the Court\u2019s opinion rests on the Due Process Clause, it also identifies a Fourteenth Amendment equal protection basis for petitioners\u2019 claims. The Court in essence combines the equal protection analysis with the due process analysis, noting a \u201csynergy\u201d between the two:<\/p>\n 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. . . . This interrelation of the two principles furthers our understanding of what freedom is and must become (slip op at 19).<\/p><\/blockquote>\n After a discussion of some of the marriages cases like Loving <\/em>and Zablocki v. Redhail<\/a><\/em>, and explaining how even though coverture was eliminated \u201cinvidious sex-based classifications in marriage remained common through the 20th century,\u201d the Court said \u201cthe Equal Protection Clause can help to identify and correct inequalities in the institution of marriage, vindicating precepts of liberty and equality under the Constitution\u201d (slip op at 21).<\/p>\n In Part IV of the opinion, the Court directly addresses some remaining arguments and concerns. First, the Court addresses the respondents\u2019 concern that \u201cthere has been insufficient democratic discourse\u201d (slip op at 23) on the definition of marriage. In response, the Court noted that there has, in fact, been considerable discussion and debate on the issue. There have been \u201creferenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings\u201d (slip op at 23). As well, there have been many cases in both state and federal courts, each accompanied by briefs of the parties and any number of amici briefs.<\/p>\n Second, the Court acknowledges that \u201cdemocracy is the appropriate process for change,\u201d but it is only \u201cso long as that process does not abridge fundamental rights\u201d (slip op at 24). When fundamental rights are involved, \u201c\u2018the Constitution requires redress by the courts,\u2019 notwithstanding the more general value of democratic decisionmaking\u201d (slip op at 24 (quoting Schuette v. BAMN<\/a><\/em>)). And, says the Court, \u201c[t]he idea of the Constitution \u2018was 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\u201d (slip op at 24 (quoting West Virginia Bd. of Ed. v. Barnette<\/a><\/em>)). Marriage is a fundamental right; thus, the issue is for the Court.<\/p>\n Third, the Court emphasizes that those who \u201cadhere to religious doctrines[] may continue to advocate\u201d their convictions that \u201cby divine precepts[] same-sex marriage should not be condoned\u201d (slip op at 27). The First Amendment allows them that right and protects them. It also protects the exercise of their religion: the decision does not demand any religion to perform or recognize a same-sex union (though some<\/a> have said they will). Further, any individual so opposed is not required to personally enter into such a union.<\/p>\n Thus, the Court holds that \u201csame-sex couples may exercise the fundamental right to marry in all States\u201d; as well, in order to protect same-sex couples who have legally married in one state from having the legality of their marriages (and their attendant rights) appear and disappear as they cross state lines, the Court held \u201cthere 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\u201d (slip op at 28).<\/p>\n Each of the four dissenting justices\u2014Chief Justice Roberts and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas\u2014issued opinions. Justices Scalia and Thomas joined Chief Justice Roberts\u2019 dissent as well as each other\u2019s dissents and Justice Alito\u2019s dissent. Neither Chief Justice Roberts nor Justice Alito joined any other dissents. I want to focus on Chief Justice Roberts\u2019 dissent; however, a few words about the other dissents are warranted.<\/p>\n First, Justice Scalia is nothing if not consistent. His dissent (a surprisingly short nine pages) contains the kind of over-the-top often acerbic rhetoric we\u2019ve come to associate with him. One of the more colorful parts is tucked into parenthetical language on page 8:<\/p>\n And if intimacy is [a freedom], one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is<\/em> a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say\u201d (Scalia dissent, slip op at 8).<\/p><\/blockquote>\n His main point, though, is that \u201ca select, patrician, highly unrepresentative panel of nine\u201d (Scalia dissent, slip op at 6) is not the institution to decide a policy question such as same-sex marriage. Allowing the Court to resolve such a question \u201cviolate[s] a principle even more fundamental than no taxation without representation: no social transformation without representation\u201d (Scalia dissent, slip op at 6).<\/p>\n Second, Justice Alito\u2019s dissent also addresses the Court\u2019s role in determining the answer to a question he believes better answered, if at all, by the states. He further claims that the traditional understanding of marriage is not the couple-centered one of today; instead marriage has been \u201cinextricably linked to the one thing that only an opposite-sex couple can do: procreate\u201d (Alito dissent, slip op at 4). He acknowledges that this traditional understanding may not \u201cring true\u201d today because \u201cthe tie between marriage and procreation has been frayed\u201d (Alito dissent, slip op at 4), but, he says, States can, if they desire, adhere to the traditional understanding in order to not \u201ccontribute to marriage\u2019s further decay\u201d (Alito dissent, slip op at 5), and States can, if they desire, refuse to recognize same-sex marriages. This \u201csystem of federalism . . . provides a way for people with different beliefs to live together in a single nation\u201d (Alito dissent, slip op at 7).<\/p>\n Third, Justice Thomas weighs in with a rather bizarre dissent. He eschews substantive due process, an interpretation he claims \u201cdistorts the constitutional text\u201d (Thomas dissent, slip op at 2) because the text itself provides for only procedural due process. However, Justice Thomas continues, even assuming there was such a thing as substantive due process, one must identify a deprivation of \u201clife, liberty, or property\u201d; \u201cliberty,\u201d says Thomas, is no more than, basically, physical movement. (Thomas dissent, slip op at 4-7). (Because Justice Scalia joined this dissent, that means that two justices would eschew substantive due process rights, which translates, in this context, into no right whatsoever to marry. By this logic, a state could set any kind of limit on marriage, like, say, limiting marriage to only fertile couples under the age of 55.)<\/p>\n The most interesting\u2014and, to me, strangest\u2014part of his dissent is his human dignity argument. According to Justice Thomas, \u201c[h]uman dignity has long been understood in this country to be innate\u201d (Thomas dissent, slip op at 16); the government does not bestow it. Thus, \u201c[t]he 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\u201d (Thomas dissent, slip op at 17). Anna High further dissects Justice Thomas\u2019 dignity argument here<\/a>.<\/p>\n This brings us, finally, to Chief Justice Roberts\u2019 dissent. Before I get into the substance, I want to note some writing and style aspects of the Chief Justice\u2019s opinion that without a doubt added to its persuasive value. Aside from drafting clear and concise prose and well-ordered arguments, the Chief Justice does two other important things: he acknowledges (often, in fact) the strengths of the other side and he keeps the insults to himself, two techniques I\u2019ve mentioned here<\/a> as being ways to persuade especially those who don\u2019t want to be persuaded. And in a case like this one, I would be one of those who\u2019d resist being persuaded by this side of the argument.<\/p>\n But I could not help but be drawn in by the opening lines of Chief Justice Roberts\u2019 dissent:<\/p>\n 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 (Roberts dissent, slip op at 1-2).<\/p><\/blockquote>\n Yes, <\/em>I say to myself. Yes, petitioners <\/em>do make strong arguments!<\/em> And then, immediately after that paragraph, the Chief Justice lowers the boom in a short, concise sentence: \u201cBut this Court is not a legislature\u201d (Roberts dissent, slip op at 2). Um, true.<\/em> And now I have to keep reading because I need to see how this opinion goes. I\u2019ve agreed with him so far; will I agree with him to the end?<\/p>\n Chief Justice Roberts clarifies that his dissent is not about his own personal opinion on whether marriage can or should be between two people of the same sex, but rather is about whether the decision to make it so should rest \u201cwith the people acting through their elected representatives\u201d or \u201cwith five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law\u201d (Roberts dissent, slip op at 3). For Roberts, the answer is clear: it rests with the people.<\/p>\n In the first part of his dissent, Chief Justice Roberts agrees \u201cthe Constitution protects a right to marry and requires States to apply their marriage laws equally\u201d (Roberts dissent, slip op at 4). For him, \u201c[t]he real question . . . is . . . who decides <\/em>what constitutes \u2018marriage\u2019?\u201d (Roberts dissent, slip op at 4). He then explains the long history of marriage as an institution between one man and one woman, quoting Blackstone, Locke and even Noah Webster as defining marriage in that way. (Roberts dissent, slip op at 4-9.) And while he agrees with the majority that \u201csome aspects of marriage have changed over time,\u201d what did not change was the \u201ccore structure of marriage as the union between a man and a woman\u201d (Roberts dissent, slip op at 7-8). At least, this did not change until more recently. In the last several years more and more states enacted laws that revised the definition of marriage to include same-sex couples, and public opinion also moved in that direction. Nonetheless, these changes were at the state level, which in Chief Justice Roberts\u2019 view is where they belong.<\/p>\n The second part of the dissent takes on the substantive due process argument, where Chief Justice Roberts likens the majority opinion\u2019s logic to the now \u201cdiscredited\u201d Lochner v. New York<\/a><\/em>. Roberts does not, like Justice Thomas (and presumably Justice Scalia), dispute there is a concept such as substantive due process, but maintains that substantive due process rights are quite strongly rooted in history and tradition, and that when the Court is asked to examine \u201cfundamental rights\u201d that are not enumerated in the Constitution, the Court must do so very cautiously and carefully. He compares the majority reasoning in this case to the majority reasoning in Lochner<\/em>, and examines Lochner\u2019<\/em>s aftermath\u2014the Court\u2019s proclivity to striking down laws as violations of liberty interests over vigorous dissents. Chief Justice Roberts notes that \u201cempowering judges to elevate their own policy judgments to the state of constitutionally protect \u2018liberty,\u2019\u201d as Lochner <\/em>and its progeny allegedly did, makes the Court appear a \u201c\u2018legislative chamber\u2019\u201d (Roberts dissent, slip op at 13 (quoting Judge Learned Hand from 1958)).<\/p>\n To avoid a Lochner\u00ad<\/em>-esque revival, Chief Justice Roberts says, the Court must exercise \u201cjudicial self-restraint\u201d (Roberts dissent, slip op at 13, quoting Collins v. Harker Heights<\/a><\/em>). The pre-eminent modern case on this standard is Washington v. Glucksberg<\/a><\/em>, where Chief Justice William Rehnquist stated that fundamental rights must be \u201c\u2018objectively, deeply rooted in this Nation\u2019s history and tradition,\u2019 and \u2018implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed\u2019\u201d (Roberts dissent, slip op at 13-14 (quoting Washington v. Glucksberg<\/em>)). Chief Justice Roberts tells us that the majority doesn\u2019t give us this background and it doesn\u2019t because, he says, what the majority does it in its opinion \u201cbreaks sharply with decades of precedent and returns the Court to the unprincipled approach of Lochner<\/em>.\u201d (Roberts dissent, slip op at 15).<\/p>\n For Chief Justice Roberts, then, that \u201cmarriage is desirable and petitioners desire it\u201d is simply \u201cnot relevant,\u201d at least \u201c[a]s a matter of constitutional law\u201d (Roberts dissent, slip op at 15). In his view, none of the marriage cases support petitioners\u2019 point because those cases are about specific restrictions on the right to marry as marriage has been traditionally defined, not \u201cabout a right to make a State change its definition of marriage\u201d (Roberts dissent, slip op at 16).<\/p>\n And the idea of changing the definition of marriage is where Chief Justice Roberts gets into the polygamy argument. Given the majority\u2019s opinion, which Chief Justice Roberts views as changing the definition of marriage, he muses whether states can even maintain the definition of marriage as between two people. He says:<\/p>\n 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. (Roberts dissent, slip op 20).<\/p><\/blockquote>\n He then applies the majority\u2019s logic for same-sex marriage to plural marriages: would there not be \u201cdignity\u201d in such a bond? Would not the children of such marriages benefit from their parents being married? Would not recognizing such marriages accord respect to such relationships? It\u2019s difficult to not agree with him on this point.<\/p>\n In the third part of his dissent, Chief Justice Roberts takes the majority to task for its failure to \u201cseriously engage\u201d with the equal protection claim. He points out, correctly, that the majority opinion does not set forth the usual recitation of the equal protection standard and does not even apply such a standard. Instead, he says, the majority\u2019s reasoning on this claim is \u201cdifficult to follow\u201d and \u201cconclusory\u201d (Roberts dissent, slip op at 23-24).<\/p>\n In the fourth and final part of his dissent, Chief Justice Roberts spends some time criticizing the Court for its role \u201cin delivering social change\u201d (Roberts dissent, slip op at 24). Questions of social policy, he claims, are not for the Court, a panel of unelected lawyers. Such questions are for the people through the democratic process.<\/p>\n 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\u2014in the tradition of our political culture\u2014reconciled to the result of a fair and honest debate (Roberts dissent, slip op at 26).<\/p><\/blockquote>\n But when the people are stripped of that power, \u201cthey know it\u201d (Roberts dissent, slip op at 26). And not only do they know it, some (maybe many) of them resent it. This resentment leads to discontentment\u2014with the ruling, and with the Court.<\/p>\n 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 (Roberts dissent, slip op at 27).<\/p><\/blockquote>\n We\u2019ve seen this before, Chief Justice Roberts says. Here he refers to Justice Ginsburg, who noted regarding women\u2019s rights and abortion that \u201c\u2018judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict\u2019\u201d (Roberts slip op at 27, quoting Ginsburg, 63 N.C. L. Rev. 375 (1985)). Touch\u00e9.<\/p>\n While the Chief Justice keeps insults to himself, he apparently isn\u2019t above a little passive-aggressive play: on seven or eight occasions, he uses quotes from opinions or articles authored by Justice Kennedy against Justice Kennedy\u2019s own reasoning. Two particularly effective uses are on page 4 and on page 24 of his dissent. First, Chief Justice Roberts quotes from Town of Greece v. Galloway<\/a><\/em>, written by Justice Kennedy, when he says, \u201cEven if history and precedent are not \u2018the end\u2019 of these cases, ante<\/em> at 4, I would not \u2018sweep away what has so long been settled\u2019 without showing greater respect for all that has preceded us\u201d (Roberts dissent, slip op at 4, quoting Town of Greece v. Galloway<\/em>).<\/p>\n Second, and perhaps most effective, is on page 24, where Chief Justice Roberts begins part IV of his dissent with a quote from Justice Kennedy\u2019s concurrence in Republican Party of Minn. v. White<\/a><\/em>: \u201cThe legitimacy of this Court ultimately rests \u2018upon the respect accorded to its judgments\u2019\u201d (Roberts dissent, slip op at 24, quoting Republican Party of Minn. v. White<\/em>).<\/p>\n Though the Chief Justice cites back to Justice Ginsburg once, he does so in the politest of ways, introducing her as a \u201cthoughtful commentator\u201d (see Roberts dissent slip op at 27). In contrast, none of his citations to Justice Kennedy appear with such an introduction.<\/p>\n Yet Roberts\u2019 dissent has a certain appeal. Of the four, it is the most reasoned (and reasonably tempered). He calls the majority on the carpet for how it dispenses with traditional equal protection analysis, which it does. So he\u2019s right about that. He eloquently captures what he\u2014and many other Americans\u2014perceive as the Court\u2019s usurpation of a very important social question. He\u2019s right that \u201c[s]tealing 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\u201d (Roberts dissent, slip op at 2). Alabama<\/a> Colorado<\/a>, Texas<\/a> and others<\/a> continue to resist granting marriage licenses to gay couples. Many<\/a> individuals<\/a> have spoken out against the ruling and voiced their opposition to same-sex marriage generally. One man<\/a> in Montana attempted Chief Justice Roberts\u2019 \u201cshort leap\u201d to polygamy by applying for a marriage license to marry a second wife.<\/p>\n But despite the dissent\u2019s initial appeal, when one goes deeper into the text there is little that is persuasive. (Judge Posner, once again<\/a>, minces no words. He called<\/a> the Chief Justice\u2019s dissent \u201cheartless.\u201d) Let\u2019s start with polygamy<\/a>. While Chief Justice Roberts is correct about that \u201cshort leap\u201d logically, it\u2019s not likely that we\u2019ll adopt polygamy any time soon. Marriage, as we\u2019ve come to know it (even in its \u201ctraditional\u201d one-man\/one-woman form) is about equality between each spouse in the relationship. Polygamy, especially polygyny (which is one man-multiple wives) is not. When we move from polygamy in its abstract sense to polygamy in its practiced sense, it\u2019s usually something practiced by a select few men, thereby reducing the number of marriageable women for the rest. And where polygamy is practiced, women\u2019s groups have tried to ban or limit it, in large part because it operates on unequal power.<\/p>\n Second, much of Chief Justice Roberts\u2019 criticism of the Court\u2019s due process analysis could easily apply to all of the unenumerated rights the Court has found. Almost always, the Court has found these rights by looking not only at \u201chistory and tradition,\u201d but also at \u201cnew insights\u201d\u2014looking back as well as forward. Many times history has failed us as a people.<\/p>\n And that is the concern I have with Roberts\u2019 \u201cleave social change to the people\u201d idea. Democracy, for all we\u2019ve heralded it, has not always been, well, democratic. Democracy has worked often to shun or denigrate many: it has allowed slavery and, later, Jim Crow segregation; it has worked against those who spoke other languages (Germans and European immigrants in the 19th century, Latinos in the 20th); it was prejudiced against certain religions (Catholics and Jews at one time, now Muslims); it has countenanced the subjugation of women, African-Americans, and other people of color, immigrants (whether those from the early 20th century or those in the later 20th century), and, of course, LGBT people. And democracy did so because the \u201cmajority\u201d wanted it that way.<\/p>\n Historically that \u201cmajority\u201d\u2014those representatives of the people\u2014was nearly exclusively male and nearly exclusively white. Even now, the representatives of the people are still overwhelmingly white and male<\/a>. While this is not to say that all white males share a single vision of this country, it is to say that, at least historically, the majority of such a group has not always been open to ideas and interests outside their own experiences.<\/p>\n At the country\u2019s founding, the right to vote was generally limited to white men who owned land\u2014a mere 10-16% of the population<\/a>\u2014thereby leaving out many other men. And while the Fifteenth Amendment<\/a> granted the vote to African-Americans in 1870, that right in reality was meaningless because states quickly found ways to limit, directly and indirectly, African-Americans from voting. Women were barred from voting until 1920<\/a>. Though the voting public now<\/a>, in theory, is made up of men and women of all ages, colors, and orientations, voter turnout is often low, especially in non-presidential election years, and it will likely get lower with the implementation of voter ID laws<\/a> and the recent gutting of the Voting Rights Act<\/a>).<\/p>\n