The dissenting opinions in Obergefell v. Hodges came from Chief Justice Roberts and Justices Scalia, Thomas, and Alito, each writing separately and each joining at least one of the others. The 5–4 ruling held that the Fourteenth Amendment requires every state to license and recognize same-sex marriages. The four dissents attacked that conclusion from different angles: Roberts said the Constitution is silent on marriage and the question belongs to voters; Scalia said the Court had seized legislative power; Thomas said the majority misunderstood what liberty means; and Alito said the decision would set religious freedom on a collision course with the new right.
Chief Justice Roberts: Marriage Isn’t in the Constitution
Roberts, joined by Scalia and Thomas, built his dissent on a simple point. The Constitution says nothing about who can marry whom. Marriage had been understood across cultures and throughout history as a union between a man and a woman, and a state’s choice to keep that definition, he wrote, “can hardly be called irrational.”1Legal Information Institute. Obergefell v. Hodges Under the Court’s own precedent, a right qualifies as “fundamental” only if it is deeply rooted in the nation’s history and traditions. Roberts found that same-sex marriage did not meet that test.
He was equally troubled by the democratic cost. Supporters of same-sex marriage had been winning the public debate state by state, and Roberts argued the majority had shut that process down: “Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law.”1Legal Information Institute. Obergefell v. Hodges In his view, removing the issue from voters would make same-sex marriage harder for many Americans to accept, because they lost the chance to reach the conclusion through persuasion and compromise.
Roberts also drew a pointed comparison to Lochner v. New York, the 1905 decision widely regarded as one of the Court’s worst mistakes, in which the justices struck down labor regulations by reading economic rights into the Due Process Clause. He argued the majority was repeating the error: “to avoid repeating Lochner‘s error of converting personal preferences into constitutional mandates, our modern substantive due process cases have stressed the need for judicial self-restraint.”1Legal Information Institute. Obergefell v. Hodges The limits that keep judges from acting as a super-legislature had, in his reading, been abandoned.
Justice Scalia: A Threat to Self-Governance
Scalia’s dissent, joined by Thomas, was the most rhetorically combative. Where Roberts focused on legal methodology, Scalia zeroed in on what he saw as a raw power grab. His central objection was that the ruling stripped the public of its most basic democratic right: “This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”1Legal Information Institute. Obergefell v. Hodges
He called the majority opinion a “naked judicial claim to legislative—indeed, super-legislative—power” that was “fundamentally at odds with our system of government.”1Legal Information Institute. Obergefell v. Hodges Unless the Constitution explicitly limits state power, Scalia argued, states should be free to adopt laws the justices personally dislike. Many states had defined marriage through voter referendums or legislative votes. When the Court invalidated all of them at once, it overrode millions of individual choices made through legitimate channels.
Scalia also attacked the quality of the majority’s reasoning, calling the opinion one “lacking even a thin veneer of law” and arguing that it reduced the Fourteenth Amendment to whatever five justices believed it “ought to protect.”1Legal Information Institute. Obergefell v. Hodges This was not, in his view, a case of well-meaning judges slightly overstepping. It was evidence of what he called “the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.”
Justice Thomas: Liberty Is Freedom From Government
Thomas, joined by Scalia, offered the most philosophically detailed critique. He argued that the Due Process Clause protects only “negative liberty,” meaning freedom from government interference, not “positive liberty,” meaning entitlement to government recognition or benefits. “Since well before 1787,” he wrote, “liberty has been understood as freedom from government action, not entitlement to government benefits.”2Justia U.S. Supreme Court Center. Obergefell v. Hodges Under that framework, state marriage laws did not deprive anyone of liberty. No one was being physically restrained. Being denied a marriage license, he argued, is not the same as being denied freedom.
He called substantive due process a “dangerous fiction.” The Due Process Clause guarantees only that proper procedures are followed before the government takes away someone’s life, liberty, or property. It says nothing about what rights are substantively protected. Yet the majority used the clause to strike down state laws based on the justices’ own views about which rights are fundamental. That approach, Thomas warned, “invites judges to do exactly what the majority has done here—roam at large in the constitutional field guided only by their personal views.”2Justia U.S. Supreme Court Center. Obergefell v. Hodges
Thomas also took direct aim at the majority’s reliance on “dignity” as a constitutional value. The Declaration of Independence treats dignity as innate in every person, not something the government confers. By suggesting that same-sex couples lacked dignity without state-recognized marriage, he wrote, the majority had it backward: it made dignity dependent on a government license. “This distortion of our Constitution not only ignores the text,” Thomas wrote, “it inverts the relationship between the individual and the state in our Republic.”2Justia U.S. Supreme Court Center. Obergefell v. Hodges Treating dignity as something the state grants, he argued, opens the door to the state deciding who has it.
Justice Alito: Religious Liberty and the Coming Conflicts
Alito, joined by Scalia and Thomas, focused less on constitutional theory and more on what would happen next. He predicted escalating conflicts between the new right to same-sex marriage and existing religious liberty protections. He pointed to concrete scenarios: a religious college providing married student housing only to opposite-sex couples, or a faith-based adoption agency declining to place children with same-sex couples. These disputes, he wrote, would “soon be before this Court.”1Legal Information Institute. Obergefell v. Hodges
Alito highlighted a striking moment from oral argument: the Solicitor General acknowledged that if the Court ruled in favor of same-sex marriage, the tax-exempt status of religious institutions that opposed it could come into question.1Legal Information Institute. Obergefell v. Hodges That concession, he argued, gave weight to the concern that consequences for faith-based organizations would extend well beyond wedding ceremonies.
He was equally troubled by the majority’s language. Although the opinion included a brief assurance that it did not mean to disparage those who oppose same-sex marriage on religious grounds, Alito found the disclaimer impossible to reconcile with the rest of the text. The majority repeatedly described traditional marriage laws as efforts to “lock out,” “disparage,” and “subordinate” same-sex couples. “These apparent assaults on the character of fairminded people will have an effect, in society and in court,” Alito wrote, adding that it was “one thing for the majority to conclude that the Constitution protects a right to same-sex marriage” but “something else to portray everyone who does not share the majority’s ‘better informed understanding’ as bigoted.”1Legal Information Institute. Obergefell v. Hodges
Where the Dissenters’ Concerns Have Landed
Alito’s warnings about clashes between anti-discrimination law and religious objections materialized faster than most observers expected. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018), the Court sided with a baker who declined to create a custom wedding cake for a same-sex couple, finding that the Colorado commission had shown open hostility toward his religious beliefs. The Court did not resolve the broader question of when a business owner’s religious convictions override public accommodations law, but held that “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”3Justia U.S. Supreme Court Center. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
In 303 Creative LLC v. Elenis (2023), the Court went further. By a 6–3 vote, the justices ruled that Colorado could not force a website designer to create wedding websites for same-sex couples when doing so would conflict with her beliefs. Justice Gorsuch, writing for the majority, held that “the First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.”4Supreme Court of the United States. 303 Creative LLC v. Elenis The decision drew directly on the kind of free-expression concerns Alito had flagged in 2015.
Thomas went further still. In his concurrence in Dobbs v. Jackson Women’s Health Organization (2022), which overturned Roe v. Wade, he wrote that the Court “should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell” because any such decision is “demonstrably erroneous.” That language carried his 2015 critique to its logical conclusion, openly inviting future challenges to marriage equality itself.
Thomas’s Dobbs concurrence also accelerated the kind of legislative action the dissenters had originally preferred. Concern that Obergefell might be overturned prompted Congress to pass the Respect for Marriage Act, signed into law on December 13, 2022. The Act repealed the Defense of Marriage Act, requires every state to give full faith and credit to marriages between two individuals regardless of sex, race, ethnicity, or national origin, and includes protections stating that nothing in the law “shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or Federal law.”5U.S. Congress. Public Law 117-228 – Respect for Marriage Act Same-sex marriage now rests on both judicial and legislative foundations, and the debate the dissenters wanted has continued in legislatures rather than ending at the courthouse door.