Four justices filed separate dissents in Obergefell v. Hodges, the 2015 decision that recognized a constitutional right to same-sex marriage. Chief Justice John Roberts wrote about judicial restraint, Justice Antonin Scalia about democratic self-governance, Justice Clarence Thomas about the original meaning of “liberty,” and Justice Samuel Alito about religious freedom. The dissenting opinions in Obergefell v. Hodges attacked the majority from four different angles, and their arguments continue to influence marriage law a decade later.1Justia U.S. Supreme Court Center. Obergefell v. Hodges, 576 U.S. 644 (2015)
What the Dissents Were Answering
Justice Anthony Kennedy wrote for a five-justice majority. He gave four reasons the Fourteenth Amendment protects a right to marry for same-sex couples: marriage is tied to individual autonomy, it supports a unique two-person union, it safeguards children and families, and it functions as a keystone of the social order.2Supreme Court of the United States. Obergefell v. Hodges The Court held that states must both issue marriage licenses to same-sex couples and recognize such marriages performed elsewhere.1Justia U.S. Supreme Court Center. Obergefell v. Hodges, 576 U.S. 644 (2015)
Each dissenter targeted a different weakness they saw in that reasoning.
Chief Justice Roberts on Judicial Restraint
Roberts wrote the longest and most methodical dissent. His central argument was that the Constitution says nothing about marriage, so the Court had no authority to impose a nationwide definition. That question, he wrote, belonged to state legislatures and their voters.3Cornell Law Institute. Obergefell v. Hodges
He framed the majority’s approach as a dangerous expansion of substantive due process, the doctrine that treats certain unwritten rights as constitutionally protected. Letting unelected judges decide which unenumerated rights qualify as fundamental, he warned, risks turning constitutional liberty into the policy preferences of the justices themselves. To illustrate the danger, Roberts repeatedly compared the majority opinion to Lochner v. New York, the widely discredited 1905 decision in which the Court struck down labor laws based on its own economic philosophy. The majority’s argument, Roberts wrote, amounted to saying the Due Process Clause gives same-sex couples a fundamental right to marry “because it will be good for them and for society.”
The practical consequence he feared most was the loss of democratic legitimacy. “Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens — through the democratic process — to adopt their view,” he wrote. “That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law.”3Cornell Law Institute. Obergefell v. Hodges He called the ruling “an act of will, not legal judgment.” Scalia and Thomas joined his opinion.
Justice Scalia on Democratic Self-Governance
Scalia’s dissent was shorter and far more combative. Where Roberts built a careful doctrinal argument, Scalia went after the majority’s legitimacy in blunt language. His core objection was the same, but he pushed it further, describing the ruling as a direct threat to American self-government.
“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,” he wrote.3Cornell Law Institute. Obergefell v. Hodges He called the majority’s approach “a naked judicial claim to legislative — indeed, super-legislative — power” and argued that a government subordinate to nine unelected lawyers “does not deserve to be called a democracy.” The objection was not about same-sex marriage but about who gets to decide.
Scalia also attacked the opinion’s style. He dismissed Kennedy’s opening passage about liberty and identity as “the mystical aphorisms of the fortune cookie,” arguing that the Court had traded disciplined legal reasoning for language that sounded grand but was too imprecise to function as law. Beneath the rhetoric, he said, sat a startling assertion: that the Fourteenth Amendment protects whatever rights the judiciary, in its “reasoned judgment,” believes it should protect. Thomas joined this dissent.
Justice Thomas on the Meaning of Liberty
Thomas wrote the most philosophically grounded dissent, focused on the meaning of “liberty” in the Due Process Clause. He argued that liberty, as the founding generation understood it, meant freedom from government interference, not a right to receive government benefits or recognition. The petitioners had not been imprisoned or restrained; they had been “left alone to order their lives as they see fit.” What they wanted was official endorsement of their relationships, and in Thomas’s reading, that is not what due process protects.3Cornell Law Institute. Obergefell v. Hodges
He also rejected the majority’s use of dignity as a constitutional value. Human dignity, he wrote, is innate, and the government can neither confer nor withdraw it. Withholding a marriage license therefore cannot deprive anyone of dignity, because dignity does not depend on government recognition in the first place. Scalia joined his opinion.
Thomas’s Dobbs Concurrence
Thomas returned to the argument in 2022. When the Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, he wrote a concurrence arguing that substantive due process is an inherently flawed doctrine and urging the Court to reconsider precedents built on it.4Justia U.S. Supreme Court Center. Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022) He named Obergefell alongside Griswold v. Connecticut and Lawrence v. Texas, calling those decisions “demonstrably erroneous.”
The Dobbs majority said the abortion ruling should not be read to cast doubt on other precedents. But Thomas’s concurrence made clear that at least one sitting justice views Obergefell as wrongly decided and would vote to overturn it. That prospect drove Congress to act later the same year.
Justice Alito on Religious Liberty
Alito’s dissent focused less on constitutional structure and more on what he predicted would happen next. He argued that the traditional definition of marriage was rooted in the connection between procreation and child-rearing, and that redefining marriage by judicial decree would carry consequences the majority ignored.
His sharpest warning involved religious believers. Alito predicted that Americans who continue to hold the traditional view of marriage would be “labeled as bigots and treated as such by governments, employers and schools.”3Cornell Law Institute. Obergefell v. Hodges By declaring one side of a contested moral question constitutionally required, the Court had marked the other side as discriminatory, exposing religious organizations and individuals to legal challenges whenever they declined to participate in same-sex marriages. Scalia and Thomas joined his opinion.
303 Creative and the Free Speech Carve-Out
Alito’s warnings foreshadowed 303 Creative LLC v. Elenis, decided in 2023. The Court held 6-3 that the First Amendment prohibits Colorado from compelling a website designer to create wedding websites celebrating same-sex marriages when doing so would conflict with her beliefs.5Justia U.S. Supreme Court Center. 303 Creative LLC v. Elenis, 600 U.S. ___ (2023) The ruling turned on free speech rather than religious exercise: custom website design counted as expressive speech, and the government cannot force someone to create speech carrying a message they reject. Roberts, Thomas, and Alito, the surviving Obergefell dissenters, joined the majority.
The decision did not overrule Obergefell or dismantle anti-discrimination law broadly. It carved out a narrow exception for businesses whose services involve original expressive content. A florist arranging flowers or a venue renting a ballroom would likely not qualify. But it confirmed the tension Alito identified.
How the Four Dissents Overlapped
The cross-joining pattern shows which arguments each justice found most persuasive. Roberts’s opinion, the broadest, was joined by Scalia and Thomas. Scalia’s was joined by Thomas. Thomas’s was joined by Scalia. Alito’s was joined by Scalia and Thomas.3Cornell Law Institute. Obergefell v. Hodges Scalia and Thomas signed onto every dissent. Roberts and Alito each wrote only their own and joined no one else’s.
The pattern also shows where they diverged. Roberts’s institution-focused argument attracted Scalia and Thomas but not Alito. Alito’s emphasis on religious consequences drew Scalia and Thomas but not Roberts. Together the four opinions mounted a four-front challenge: Roberts on process, Scalia on legitimacy, Thomas on doctrinal foundation, Alito on real-world consequences.
Why the Dissents Still Matter
Supreme Court dissents don’t change the law, but they shape it over time. The Obergefell dissents matter for three ongoing reasons.
First, they supply the intellectual framework for any future challenge. Thomas’s Dobbs concurrence showed that at least one justice is actively seeking to revisit the decision, and the arguments he would use are the ones laid out in 2015.4Justia U.S. Supreme Court Center. Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022)
Second, Alito’s predictions about religious liberty conflicts have played out in court. The 303 Creative decision, faith-based service provider disputes, and ongoing litigation over conscience protections all trace back to tensions his dissent identified.5Justia U.S. Supreme Court Center. 303 Creative LLC v. Elenis, 600 U.S. ___ (2023)
Third, Congress responded directly. The Respect for Marriage Act, signed on December 13, 2022, repealed the Defense of Marriage Act and requires the federal government and all states to recognize any marriage between two people that was valid where performed.6United States Congress. H.R. 8404 – Respect for Marriage Act If the Court ever overturned Obergefell, the statute would preserve federal recognition of existing same-sex marriages, though it would not require states to issue new licenses.
The Act also addressed Alito’s religious liberty concerns. It states that nothing in the law diminishes religious protections available under the Constitution or the Religious Freedom Restoration Act. Nonprofit religious organizations, including churches, mosques, synagogues, temples, faith-based agencies, and religious schools, cannot be required to provide services or facilities for the celebration of any marriage, and refusing cannot give rise to a civil lawsuit. The Act also bars using marriage recognition to strip tax-exempt status from religious organizations.6United States Congress. H.R. 8404 – Respect for Marriage Act Congress tried to thread the needle between the majority’s holding and the dissenters’ warnings.
Roberts closed his dissent with a line that captures the shared frustration of all four dissenters: the Constitution leaves no doubt that the question of marriage “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.”3Cornell Law Institute. Obergefell v. Hodges That question, about who decides contested moral issues, did not begin or end with Obergefell, but few cases have framed it so starkly.