That Supreme Court justices have to offer legal arguments rather than rely on professions of faith in interpreting American laws is a feature, not a bug. But it can also be awkward to talk in exclusively secular terms about an institution that many Americans see as deeply religious—and this is as true of the majority opinion as it is of the dissents. For all the soaring rhetoric about marriage in Kennedy’s decision, said Andy Koppelman, a constitutional law professor at Northwestern Law, it’s not exactly clear why marriage is a fundamental right according to the Constitution. “Every reason that [Kennedy] cites is a reason why same-sex marriage is a good idea,” he said. “But it’s not clear that they’re legal reasons. Not every good reason is a legal argument.” For Kennedy, marriage is about dignity and happiness, just as for Alito, Roberts, Scalia, and Thomas, it’s primarily about procreation; both of these are first-principle claims. In part, the division among the justices comes down to their opinions about what the Court should do in a case like this. As Roberts writes:
Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.
“This whole area of the law is troubling in the sense that one doesn’t like the Court just making it up,” Koppelman added. “Kennedy is vulnerable on that score: He hasn’t got a good answer to the claim that he is just making it up.”
Regardless, here we are; this is the decision America got. Now that the Court has resolved the legal question of same-sex marriage, there may be more clarity in the opposition to same-sex marriage. Russell Moore, the head of the Southern Baptist Convention’s policy arm, called on Christians to defend an increasingly counter-cultural, “biblical” understanding of marriage. The head of the United States Conference of Catholic Bishops, Joseph E. Kurtz, called the decision “a tragic error that harms the common good and most vulnerable among us.” It’s not just Christians, either: The Orthodox Union, a Jewish organization, issued a statement to “reiterate the historical position of the Jewish faith, enunciated unequivocally in our Bible, Talmud and Codes, which forbids homosexual relationships and condemns the institutionalization of such relationships as marriages.” Yet many conservative leaders have paired their opposition to gay marriage with a call to care for those who identify as gay (or, as some phrased it, who experience “same-sex attraction”). This framing may only be possible because the goal has changed; marriage in this country can now be treated entirely as a cultural and religious question, rather than a political and legal one.
As for those social conservatives who forecast the certain decline of “a keystone of the Nation’s social order,” perhaps they should look to Alito’s dissent, in which he cites his own writing in United States v. Windsor: “At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be.”