Page:Obergefell v. Hodges.pdf/58

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Perhaps recognizing how little support it can derive from precedent, the majority goes out of its way to jettison the “careful” approach to implied fundamental rights taken by this Court in Glucksberg. Ante, at 18 (quoting 521 U. S., at 721). It is revealing that the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process. At least this part of the majority opinion has the virtue of candor. Nobody could rightly accuse the majority of taking a careful approach.

Ultimately, only one precedent offers any support for the majority’s methodology: Lochner v. New York, 198 U. S. 45. The majority opens its opinion by announcing petitioners’ right to “define and express their identity.” Ante, at 1–2. The majority later explains that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Ante, at 12. This freewheeling notion of individual autonomy echoes nothing so much as “the general right of an individual to be free in his person and in his power to contract in relation to his own labor.” Lochner, 198 U. S., at 58 (emphasis added).

To be fair, the majority does not suggest that its individual autonomy right is entirely unconstrained. The constraints it sets are precisely those that accord with its own “reasoned judgment,” informed by its “new insight” into the “nature of injustice,” which was invisible to all who came before but has become clear “as we learn [the] meaning” of liberty. Ante, at 10, 11. The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” Ante, at 19. Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences