Parsing the Phrasing: Obergefell v. Hodges

My feel for language is deep. In a simple conversation with someone, I may start unraveling the rhetorical features of my co-conversant's speech. Almost effortlessly, I can write rhyming accentual-syllabic verse or sing extemporaenous rhyming songs. I can copy almost any sound in any language and speak fluently in tongues with the sounds of dozens of languages. Since I was a very young boy, I've been drawn to the magic and beauty of simple text, simply as visual presentations. I pun so much that sometimes layers of meaning and languages are required to make a pun of mine real, and the layers go so deep that I can read a poem of mine and feel the pun but have lost track of all the links and no longer remember what I was saying.




And I follow the activities of the U.S. Supreme Court almost fanatically, sometimes reading the entirety of rulings of that court the day they come out. And this is what I did on Friday after the Supreme Court recognized marriage equality the law of the land. (Note that I wrote "recognized" instead of "made." That was intentional: first, to undercut the rhetoric that this decision was an example of the Supreme Court making itself a super-legislative body; second, because it is the more accurate way to phrase this.)




The rhetoric of this decision, and that of the four dissents bundled with it, interested me so much that I began to copy sentences out of that 105-page text in order to write down a few thoughts about them:




Kennedy, for the majority



As expected by most people who follow the Supreme Court as closely as I do, Kennedy wrote the decision for the majority. Although he had the help of many justices along the way, he is the one who receives the lion's share of the credit for extending the gay rights revolution, from Lawrence vs. Texas (where he wrote the majority opinion that led to the decriminalization of homosexual sex), to the United States v. Windsor (where he wrote the majority opinion again, this time undermining a significant aspect of the Defense of Marriage Act and leading to a cascading set of cases across the country where lower courts invalidated state laws against marriage equality), and now to Obergefell v. Hodges. 




Many conservatives, even justices writing the dissent to this decision, criticized his language in that decision as being too poetic, and it did yearn towards poetry a little, for the reason that Kennedy found this decision as an important one, one that helps millions of people, one that helps to transform and better our world. 




Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.
Kennedy focused much, if not most, of his text on history and liberty. This one line near the beginning of his opinion for the majority ties together those two threads of his argument: To be gay was, at one time not that long ago, essentially illegal since the manifestation of gay sex was; in time (with Kennedy's help in Lawrence v. Texas in 2003) that changed, but all that accomplished was a change from making gay Americans outcasts after having literally been outlaws under the law. The punning move from outlaw to outcast underlines what a small space separates the two. Those words help make the point that actual full liberty was still kept at bay.
Loving did not ask about a “right to interracial marriage”; Turner did not ask about a “right of inmates to marry”; and Zablocki did not ask about a “right of fathers with unpaid child support duties to marry.” Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right.




The justices talk towards their decisions, so they know what to expect from their colleagues on the opposing side of a decision. Here, Kennedy is arguing against the argument that will come in the dissent: that allowing gay marriage eradicates the centuries-old definition of marriage used in all civilizations for all time. (Note that to do that the dissenters have to ignore the diversity of types of marriages that exists across the globe and write carefully about a man marrying only a woman, but leaving out that a man sometimes does that multiple times without nullifying the previous marriage or marriages.) What Kennedy is doing here is noting that the issue in each of these preceding Supreme Court cases (only one of which is a famous case) were about the general rights to marry most of all. Maybe not the strongest argument, and it rests upon a thin thread of logic, but that is his defense.


Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. 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.


Here Kennedy argues that this decision is not a case of judicial activism, which he explained earlier in the opinion and in a fairly abbreviated fashion via a discussion of the Fourteenth Amendment. This is an important point: laws and tradition can abridge fundamental individual rights (which I personally care much more about than "state's rights"), so the involvement of the courts is not activism--it is justice. He also calls for respecting the dignity of gay marriage under law. And the conservatives later attack him for both of these. However, I think Kennedy overstepped here: saying that unmarried gays will be "condemned to live in loneliness," as if the only prescription that cures loneliness is marriage. He overstepped here.




The judgment of the Court of Appeals for the Sixth Circuit is reversed.


It is so ordered.




My favorite "It is so ordered" ever. This last sentence of mine shows my thinking, or bias, depending on your point of view.




Roberts dissenting, with the conservative bloc
Chief Justice John Roberts, Jr, dissents gently, relative to the other justices' dissenting opinions. His main point in the same: The decision of the majority was judicial overreach, pure and simple, and the majority acted as a legislature enacting laws instead of a judiciary interpreting laws.




But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. 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.




This is the essence of Roberts' argument: the Court has become a legislature with this decision, the court in effect creates law with decision, marriage has meant one thing throughout history so that tradition should be respected, and this decision stops the democratic process that allows change to come naturally. I find all of these arguments lacking. The judiciary cannot allow injustice merely because a law has been made, and the Supreme Court, with Roberts on board, showed little reserve in undermining campaign finance laws, because the majority saw an abridgment of rights, so there is little consistent argument Roberts can make on that count. Arguing in favor of tradition would also have required Roberts to argue in favor of slavery in the American South in the early 1860s, but I doubt that's an argument he would want to make now. So tradition does not matter in the law: justice does. And the argument that justice always requires individuals to win democratic reforms suggests that justice goes only to the most political, not simply to anyone hurt by injustice. In my reading, the fulcrum of Roberts' argument is that individual justice cannot trump a law of a state, regardless of the injustice of that law. 




Note also the use of "five lawyers" as a deprecatory term to show the insignificance of the 5-4 majority and its opinion. This term is used later by others in dissent, and it is part of an ad hominem attack I find quizzical. I haven't noticed the use of this term in the many recent 5-4 majorities that made many conservative points of view the law of the land. This is empty rhetoric, rather than reasoned argument.




The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are? 




This is Roberts at his most indignant, and least cogent. But I'll start at the beginning, where there is some argument. Although Roberts rants a bit about the lack of judicial caution or humility, which he sees evident in this decision, he doesn't note any lack of caution or humility in his work overturning a long-held view of the Second Amendment, where (at least) the clause, "A well regulated Militia, being necessary to the security of a free State," suggests that there was a military, rather than merely personal, reason keep unrestricted the bearing of arms. His more important point here is the idea that the justices' overstepped the bounds of their role because of their supposed but not real insight into injustice. I understand that point, but there is clear evidence, and certainly from the petitioners themselves, that gays and lesbians have been and continue to be hurt by heterosexual-only marriage laws, which makes it difficult to accept that any new insight was in play. We've had this insight for decades, we could enumerate certain legal inequities for years, which fact the majority simply decided to accept rather than ignore.





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. The Constitution leaves no doubt about the answer.




Once again, Roberts resorts to the phrase "five lawyers." That is a central, thought empty, point of his dissent. At the same time, he notes he might not be against gay marriage (though he is not clear about this); instead, he is sure that this issue needs to be resolved by legislators, not by jurists. And then he makes the point anyone might make when debating: He says there is no other way to see the issue except his way.


As the majority acknowledges, marriage “has existed for millennia and across civilizations.” Ante, at 3. For all those millennia, across all those civilizations, “marriage” referred to only one relationship: the union of a man and a woman. See ante, at 4; Tr. of Oral Arg. on Question 1, p. 12 (petitioners conceding that they are not aware of any society that permitted same-sex marriage before 2001). 




This part of the dissent drives me the most crazy because it is both specious and incurious in its execution. Kennedy, writing for the majority, does say, "The centrality of marriage to the human condition
makes it unsurprising that the institution has existed for
millennia and across civilizations. Since the dawn of
history, marriage has transformed strangers into relatives,
binding families and societies together." But the majority does not claim that only one form of marriage has ever existed or that the concept of marriage cannot change over time--both of which are implied by this hyperlegalistic clogging of words. Roberts then uses some sleight of hand by saying that marriage has always been "the union of a man and a woman," thus ducking the historical fact of polygyny and polyandry without quite excluding it from the definition he gives. And he ignores the fact that the laws being overturned consistently define "marriage" as the union of "one man and one woman," making clear that the authors of those laws define polygyny as "the union of one man and many women" (unlikely as they are to imagine even the possibility of polyandry).




What I hate about this section is that it imagines a single version of marriage when there has probably always been many types of marriage across time. First, let's note, he's literally writing that there has been no gay marriage even though it's existed within the U.S. for over a decade. Second, he's ignoring the continuing reality of child marriage, which is sometimes the union of two children but more frequently "the union of a man and a girl." Third, he ignores the historical and contemporary existence of arranged marriages, or even imagine the sweeping move towards romantic love leading to marriage, which is little less than two centuries old, and which itself is marriage the furthest removed from an arranged marriage. Fourth, as I've noted, he sidesteps the issue of polygamous marriage, or the various ways in which it has existed, such as having concubines (wives of a lower order). Fifth, even if the petitioners in this case did not realize that same-sex marriage had existed (which they should have), maybe Roberts could have had a law clerk do a quick Internet search. Certainly, two-spirit (essentially, transsexuals) American Indians who were physically male married other males for centuries. (Note that I'm putting aside the concept of a third or four sex, since I assume Roberts would.) Also, a brief Internet search tonight shows evidence of gay marriage in societies in parts of Europe as well as in China, both in more ancient times. Sixth, why can Roberts not understand that society and social customs change? that the past is prelude, not destiny?



In his first American dictionary, Noah Webster defined marriage as “the legal union of a man and woman for life,” which served the purposes of “preventing the promiscuous intercourse of the sexes, . . . promoting domestic felicity, and . . . securing the maintenance and education of children.” 





Apparently, Roberts doesn't have anyone to help him with research, since he says that Webster's An American Dictionary of the English Language published in 1828 is Webster's "first American dictionary," even though Webster published his Compendious Dictionary of the English Language in 1806. Maybe Roberts should have gone back to 1806 to read Noah's first definition of "marriage," which is quite short since "compendious" (counter-intuitively enough) means "concise": "the act of joining man and woman." Although Webster was a good definer generally, the Compendious is filled with ridiculous definitions, and this one is so vague that it encompasses even the action of gluing a man and a woman together. Honestly, the definition is a better definition for "marriage ceremony" than "marriage." Don't look for meaning of words in two-hundred-year-old dictionaries and ignore evidence of the use of the word all around you.




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.


None of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a woman. The laws challenged in Zablocki and Turner did not define marriage as “the union of a man and a woman, where neither party owes child support or is in prison.” Nor did the interracial marriage ban at issue in Loving define marriage as “the union of a man and a woman of the same race.”
Unlike criminal laws banning contraceptives and sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit. No one is “condemned to live in loneliness” by the laws challenged in these cases—no one. Ante, at 28. At the same time, the laws in no way interfere with the “right to be let alone.”

One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Cf. Brown v. Buhman, 947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 14- 4117 (CA10). Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. 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.



The majority goes on to assert in conclusory fashion that the Equal Protection Clause provides an alternative basis for its holding. Ante, at 22. Yet the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions.


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.



I respectfully dissent.






Scalia dissenting, with Alito and Thomas



Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. 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. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.



But we 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. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable
that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.


But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those
rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.


That is so because “[t]he 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 . . . . ”14 One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”15 The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.”16 Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.17 This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds
with our system of government.



Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers18 who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage.



But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.20  They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since.


The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.22 Of course the opinion’s showy profundities are often within its reach, a liberty that includes certain specific rights that profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”23  (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if
intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”24  (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty
[never mind], give birth to a right?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.” (What say? What possible “essence” does substantive due
process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court 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.
really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational pop philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.



Whether we define “liberty” as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it. Petitioners cannot claim, under the most plausible
definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace. They have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States. They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit.


Nor, under the broader definition, can they claim that the States have restricted their ability to go about their daily lives as they would be able to absent governmental restrictions. Petitioners do not ask this Court to order the States to stop restricting their ability to enter same-sex relationships, to engage in intimate behavior, to make vows to their partners in public ceremonies, to engage in religious wedding ceremonies, to hold themselves out as married, or to raise children. The States have imposed no such restrictions. Nor have the States prevented petitioners from approximating a number of incidents of marriage through private legal means, such as wills, trusts, and
powers of attorney.


Instead, the States have refused to grant them governmental entitlements. Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages—on state issued marriage licenses, death certificates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers would have recognized.






Thomas (starts here?) with Alito and Scalia



But “liberty” is not lost, nor can it be found in the way petitioners seek. As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefits. And as a constitutional matter, it is likely even narrower than that, encompassing only freedom from physical restraint and imprisonment.



The majority’s inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty



To protect that liberty from arbitrary interference, they establish a process by which that society can adopt and enforce its laws. In our country, that process is primarily representative government at the state level, with the Federal Constitution serving as a backstop for that process. As a general matter, when the States act through their representative governments or by popular vote, the liberty of their residents is fully vindicated.



The definition of marriage has been the subject of heated debate in the States. Legislatures have repeatedly taken up the matter on behalf of the People, and 35 States have put the question to the People themselves. In 32 of those 35 States, the People have opted to retain the traditional definition
of marriage. Brief for Respondents in No. 14–571, pp. 1a–7a. That petitioners disagree with the result of that process does not make it any less legitimate. Their civil liberty has been vindicated.



In our society, marriage is not simply a governmental institution; it is a religious institution as well. Id., at 7. 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. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 27. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Ibid. Religious liberty is about freedom of action in matters of
religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.



Concerns about threats to religious liberty in this context are not unfounded. During the hey-day of antimiscegenation laws in this country, for instance, Virginia imposed criminal penalties on ministers
who performed marriage in violation of those laws, though their religions would have permitted them to perform such ceremonies. Va.Code Ann. §20–60 (1960).






Alito with Thomas and Scalia



Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional 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. E.g., ante, at 11–13. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.



Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. 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.


Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.