In its final section, Kennedy’s opinion engaged the argument that courts should allow the political process to resolve this issue. The right to marry is an individual right, not a broad social policy:
The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.
The petitioners in this case are people, whose lives are fleeting, he noted. If there is a right to marry, then barring them from marriage for even one of their days on earth is a deprivation of that right, and being told to be patient is not a fit judicial response. In addition, he argued, denying the claim to same-sex marriage is itself an intervention in the democratic process, because it would “would teach the Nation that these [same-sex marriage bans] are in accord with our society's most basic compact.”
This political-process argument forms the major disagreement between the majority and the four dissenters. Each dissenting justice wrote a separate opinion. Justice John Roberts insisted that the majority was not including same-sex couples in marriage, but rather, changing its definition. Justice Clarence Thomas dissented, in part, because “liberty is only freedom from governmental action, not an entitlement to governmental benefits.” Alito asserted that the decision will reinforce a view of marriage that “focuses almost entirely on the happiness of persons who choose to marry,” in contrast to the focus of “traditional marriage” on biological procreation.
But each dissenter, in the end, centered his argument on the perceived illegitimacy of deciding this issue in court rather than at the polls. Roberts, whose principal dissent gained the support of Scalia and Thomas, wrote that “supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”
In his separate dissent, Scalia wrote that he really didn’t care one way or the other about same-sex marriage, only about who should have decided it. It shouldn’t be decided by a judge, he argued, and especially not by Anthony Kennedy. Kennedy’s opinion, he said, is “lacking even a thin veneer of law,” filled with “mummeries and straining-to-be-memorable passages,” written “in a style as pretentious as its content is egotistic.” An acid footnote said that “If I ever joined an opinion” filled with Kennedy’s rhetoric, “I would hide my head in a bag.” Kennedy’s logic took the Court from “disciplined legal reasoning ... to the mystical aphorisms of the fortune cookie.”