One has to make a distinction between marriage as an arbitrary member of the class of all possible civil relations, and marriage as a contingent historical phenomenon. If I were designing a government from scratch, it’s not at all obvious that I would want to give any kind of marriage (straight or inclusive) special status.
Nevertheless it is certainly the case that in our current circumstances, the exclusion of queer people from the institution of marriage deprives them of something fundamental. (Social, “spiritual”; not just legal.)
This is precisely why Kennedy’s opinion reads like a piece of poetry. How do you convince a jurist that exclusion from this particular legal relationship amounts to a deprivation of life and liberty?
Roberts:
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. […] It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.
Quite right!
There’s a weird tension between arguments (from both sides) that marriage somehow exists for the welfare of children, and the obvious fact that marriage is neither a necessary nor a sufficient condition for having a child. Why can’t we just recognize that we’re talking about two different things here—if it’s really important for children to have multiple parents, why not just create a special status for households that include children and multiple parents? Why not let that special status be assigned at the birth the first child?
Scalia:
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.
Hubris? Scalia is surprised by the possibility that all the states might have been wrong; on the contrary, it seems outrageous to expect that the states could get everything right the first time around. Constructing an internally consistent set of beliefs or preferences is really hard: individual people can’t do it, so how could a legislature?
As dramatically as the structure of society has changed in the last few centuries, the basic humanist program of “life, liberty, happiness” has held up astonishingly well. Viewed from the right angle, all social “progress” since the establishment of the republic has simply been a refinement of our understanding of what this program really demands. Even now, our beliefs and laws are surely inconsistent with a fully considered humanism, but they grow more consistent over time.
We do not expect the judiciary to achieve immediate enlightenment (a “fully considered humanism”), but we expect them to be ahead of the curve, and to carry the rest of us along with them.