us-supreme-court
Dissenting justices&#39; views on second question in Obergefell
<p><em>Obergefell v. Hodges</em> was a recent case in which the Supreme Court ruled that same-sex marriage was a constitutional right. The Court considered two questions:</p>

<ol>
<li>Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?</li>
<li>Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?</li>
</ol>

<p>The Court ruled 5-4 that the answer to both question is <strong>yes</strong> (a <strong>yes</strong> answer to the first question essentially makes the second question moot). Each of the four dissenting justices (Alito, Roberts, Scalia, and Thomas) wrote an opinion.</p>

<p><strong>Is there any indication (for example, from their opinions) of how the dissenting justices would have voted on the second question?</strong></p>

<p>From <a href="http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf" rel="nofollow">Roberts' dissenting opinion</a>:</p>

<blockquote>
  <p>Although the policy arguments for extending marriage to same-sex
  couples may be compelling, the legal arguments for requiring such an
  extension are not. The fundamental right to marry does not include a
  right to make a State change its definition of marriage. 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. In short, our Constitution does not enact any one theory
  of marriage. The people of a State are free to expand marriage to
  include same-sex couples, or to retain the historic definition.</p>
  
  <p>(The Due Process Clause is not a guarantee of every right that should
  inhere in an ideal system.)</p>
</blockquote>

<p>In my opinion, this quote speaks as much to the second question as the first. Assume (hypothetically) for a moment that question one was not at issue. If a state defined marriage as only between opposite sexes, and <em>the right to make a state change its definition of marriage</em> is not in the Supreme Court's purview (in our hypo), then the state is as free to reject the validity of marriages abhorrent to its laws, performed elsewhere, as it is to deny the right to marry under its theory of marriage.</p>
