However, the chief is invested in a false dichotomy in the marriage cases and in Lochner. What if there were a third way, a substantive argument to be made for what marriage is based not on democratic consensus, but rather from the very nature of marriage as an institution with the primary purpose of binding together mothers, fathers, and potential children, in an association recognized as the most fundamental unit of the polis (or community)?

The chief does not seem oblivious to the gravity of what the majority did by redefining marriage. In oral argument, he strongly suggested to Mary Bonuato, counsel for the plaintiffs, that though they are seeking to “enjoin the institution of marriage,” they are actually seeking to redefine its primary purpose as the capstone of an emotional union of two people. It is akin to if in a case on free speech, we incorporated into free speech a type of speech that simply cannot be considered worthy of our rational assent, such as slander.

Likewise, when we ask why the government does not sanction all different kinds of relationship marked by an emotional bond, we realize there is something unique in the marital bond and its productive capacity: it is marked by and frequently expressed in the same binding commitments the law requires of us, such as husband to wife and parent to child. However, the chief’s dissent does not strike down the basis of same-sex marriage as being incoherent and unstable from its contradictory first premises. He simply says that the Constitution allows this to be discussed as a matter of public policy.