Obergefell v. Hodges (576 US __ ), because there were some comments and criticisms that led me to suspect it was worse than I thought it would be. The suspicion was confirmed.
As expected, Associate Justice Anthony Kennedy authored the decision, which is the latest in the logical progression from Lawrence v. Texas (539 US 558 ) through United States v. Windsor (570 US __ ), the majority opinions of which Kennedy also wrote. Also as expected, Kennedy premissed his opinion on the dubious concept of “substantive due process”, the pre-eminent rationale for judicial legislation, and invoked the “equal protection” clause without bothering to explain — as, indeed, none of his decisions explain — how homosexuals qualify as a “protected class”. (Sorry, neither “Well, duh!” nor “Because I said” is a valid legal argument.)
In its way, Obergefell was an even greater assertion of SCOTUS power than was Windsor. As I explained at the time, Kennedy justified striking down the Defense of Marriage Act (DOMA) by arguing that the right to define marriage lay with the States, not explaining how the State’s authority to confer State benefits could rob the Federal government of its authority to decide who gets Federal benefits. Now, however, the States can exercise their authority only until the Court develops a “better informed understanding” (slip opinion at 19), at which time it can impose a school solution on everyone.
For Alexis de Tocqueville, the great French commentator on early America, the great danger of democracy was “tyranny of the majority”; i.e., the insufficiency of institutions to protect individual rights. The problem for the last few decades has been exactly the opposite — aristocracy, the rise of a self-selected élite willing to frustrate the democratic process, distort the plain meaning of the Constitution, and violate long-standing political rights in order to impose its superior mores. Obergefell signals the triumph of that élite and the functional advent of limited self-government.