The Obergefell Decision is Incorrect

I think the Supreme Court decision in Obergefell v. Hodges, which declared that state prohibition of gay marriage is unconstitutional, is incorrect. I can't find a right to marry in the Constitution.

That's not to say that I think gay couples should not be married. Every state in the union, and the federal government as well, should endorse and protect same-sex marriages. There is not earthly reason to prohibit it; the arguments made by opponents are silly and often contradictory. As I noted in the space earlier, Justice Scalia's dissent in the case was especially embarrassing. No one, for example, has a First Amendment right to refuse to interact with gay people in the public sphere. That's nonsense.

Also, I think the Supreme Court decision in Lawrence v. Texas is absolutely correct. Justice Kennedy's opinion is that case made precisely the right point when it said that

liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct....  The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

To outlaw homosexual conduct is as much an invasion into basic liberty as it would be to outlaw heterosexual conduct as a whole. This kind of government intrusion is exactly the kind of this the 9th Amendment was written to prevent. 

Marriage, on the other hand, is not private. It is an explicitly public act, recognized (or not) by religious, social, or political communities. It's not conducted in private, and has no serious bearing on other protected behavior. One can be gay, straight or otherwise whether one is married or not. Although Justice Roberts dissent was unnecessarily uncivil, I think he was right. He said, in part,

Today the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening…

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice…

That is, the right to gay marriage is a legal one, to be protected by political process, not a constitutional one. I think Justice Kennedy and the four justices who signed his opinion went a step too far.