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The Supreme Court's much anticipated invalidation of gay marriage bans improved the personal lives of millions of ordinary Americans. It made the country a more decent place. Even Chief Justice Roberts, at the conclusion of his otherwise scathing dissent, acknowledged that the decision was a cause for many Americans to celebrate.

But although the Chief Justice thought that advocates of gay marriage should "by all means celebrate today's decision," he admonished them "not [to] celebrate the Constitution." The Constitution, he said, "had nothing to do with it".

Part I of this article quarrels with the Chief Justice's assertion that the Constitution "had nothing to do with it." It argues that it is the dissenting justices, rather than their colleagues in the majority, who have ignored the traditions of American Constitutional law.

Part II argues that the Chief Justice is exactly right when he says that we should celebrate the Obergefell decision, but not the Constitution, but he is right for reasons that he, himself, would disagree with. The Court's decision marks a partial and flawed but nonetheless important advance toward inclusion and decency. The majority's opinion, replete with invocations of the supposedly binding force of constitutional obligation, belittling of the large and growing number of Americans who are unmarried, and mischaracterization of the nature of the movement for gay rights, is exclusionary, reactionary, and authoritarian. Even as the Court demonstrates its (concededly limited) capacity to advance the cause of social justice, it unwittingly also demonstrates the failure of constitutional law to serve its core purpose of providing a just ground for cooperation among people who disagree about fundamentals.

A brief conclusion discusses the implications of this failure.

Publication Citation

2015 Sup. Ct. Rev. 115–146