The Four Dissentinions Of Obergefell

The four dissenting opinions in Obergefell give us a fairly good idea of what a majority opinion would look like if issued by a Supreme Court that still hears and orders its thinking based on foundationalism, objective truth and ordered reason. In other words, what the Obergefell decision would look like if written by justices who still hear the echo. It might look something like this:

Marriage, as historically defined in our law and traditions since the founding of this nation and for all of recorded human history, has been understood by the people and supported by the laws of the States as a union between a man and a woman. Even in those cultures which allow polygamous marriage, the heterosexual character of the institution is assumed. Western

Therefore, a society has good cause to favor the institution of marriage through appropriate laws establishing and regulating civil marriage so that children, for the most part, are conceived, educated, nurtured and protected by their biological parents. The fact that some married couples are childless or that some children are orphaned or abandoned and must be raised by others does not alter the normalcy or centrality of the nuclear family unit or its importance to the State.

Civil marriage is not a fundamental right of all citizens regardless of gender. Civil marriage other than between a husband and a wife has no historical or legal roots beyond the last few decades. Civil marriage, as a legal institution, does not exist to confer human dignity or give societal approval to the personal love and commitment between two individuals. It is beyond the power and purpose of government to confer such things on its citizens. Personal love and happiness are wonderful things, but they are none of the government’s

There is no fundamental constitutional right for two people of the same gender to participate in civil marriage. Civil marriage laws have a clear rational basis as a gender specific institution and serve a legitimate governmental purpose. There is no violation of due process involved when the legal institution of civil marriage reflects the social institution of marriage as it has always been defined for understandable and rational reasons.

The notion that marriage is a discriminatory institution designed to subjugate women is unfounded as a matter of law and seems historically unfounded. While it is true that, before the present age of gender equality, under the law wives usually enjoyed fewer and more limited legal rights than husbands, However, this ignores the substantial legal obligations placed on a husband regarding his wife and the children born to the marriage that only exist because those obligations were imposed by civil marriage