I read the Supreme Court's five opinions in Obergefell v. Hodges, the same-sex marriage case with great interest, but without a lot of appreciation. Justice Kennedy's opinion for the majority reaches what to me is the right result, but doesn't use much legal reasoning to get there. His rhetoric is good, but his legal logic is conspicuous mainly by its absence.
Chief Justice Roberts's dissent is more analytical; he says in essence that he's happy for couples in same-sex relationships, but he doesn't see the right to marry someone of the same sex anywhere in the constitution. In his words, "Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for such an extension are not." The "fundamental right to marry," he says, does not compel a state to change its definition of marriage. His voice of calm reason slips only on the last page of his dissent, when he says "Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."
The other justices in the minority are less temperate. Justice Scalia points out that the court is not a paragon of diversity or representation: "This court consists of only nine men and women," he says, four from New York, eight from one coast or the other, and only one from the midwest. All of them, he notes, are graduates of Harvard or Yale. There is not a genuine Westerner ("California," he says with a nod to Justice Kennedy, "does not count."), and not a single Protestant. He winds up with a footnote saying that the Court has descended from its tradition of legal reasoning "to the aphorisms of a fortune cookie."
The dissents of Justices Thomas and Alito go downhill from there. Justice Thomas has a good discussion of substantive due process (something of interest only to lawyers), correctly says that the constitution does not have a "dignity clause" - a clause guaranteeing Americans the right to personal dignity -- after which he bizarrely states that the government did not take away the dignity of slaves by allowing them to be enslaved. (Actual slaves might disagree with him.)
A bench full of eminent Harvard- and Yale-trained intellects should be able to write five opinions among them and cite some actual law. Justice Kennedy's opinion is heartwarming and inspirational but not very legal. He might more analytically have written something like this:
1. The Full Faith and Credit provision requires each state to recognize the out-of-state marriages of same-sex couples whose marriages were lawful where contracted, regardless of whether the state itself issues licenses to same-sex couples.
2. Because marriage is a fundamental right, the court will apply strict scrutiny (not rational relationship) to a state's restrictions on the right to marry that are based on race, religion, and gender.
3. The individual state restrictions allow George to marry Martha, but do not allow Julie to marry Martha, thus imposing a distinction between George and Julie on whom they are allowed to marry by reason of their gender: George can marry people whom Julie can't, and Julie can marry people whom George can't, simply by reason of the different genders of George and Julie.
4. The concept of marriage as an institution in which spouses of different genders united for life to raise children was pretty much shot to hell in the 1960s. Justice Alito points out that 40% of American children are now born to unmarried parents.
5. The states do, however, have a compelling interest in promoting children to be raised in two-parent households; that is, in households of married couples. (Here cite the evidence brought up by opponents of SSM about children of two-parent families.)
6. Therefore the states have a compelling interest in encouraging more people to be married, rather than fewer, for the better welfare of children. (Here cite statistics on same-sex couples bearing and adopting children.) However, the prohibitions on same-sex marriage apply to good parents as well as bad.
7. Therefore (Justice Kennedy should have written) the states' restriction on same-sex marriage is not narrowly tailored to advance a compelling state interest, and is unconstitutional as being based on gender.