This case isn't about how to define marriage. It's about who gets to decide that question.In the language of U.S. constitutional law, a "liberty interest" typically refers (doesn't it?) to a 'negative freedom' -- a freedom not to be interfered with -- not to a 'positive' right to "decide" something. At least, that has been my impression. From this standpoint, it's not surprising that Justice Sotomayor immediately jumped in and said to Bursch that a defeat for his client (the state of Michigan and its ban on same-sex marriage) would not take anyone's liberty away.
Is it the people acting through the democratic process,or is it the Federal courts? And we're asking you toaffirm every individual's fundamental liberty interestin deciding the meaning of marriage.
But Bursch seemed not to be referring to the Fifth and Fourteenth Amendment language about not depriving anyone of liberty without due process. He meant something else. He was asserting that individuals have a "fundamental liberty interest in deciding the meaning of marriage." Can that possibly be right?
In a constitutional democracy (a phrase used by Justice Kagan in the course of the argument), individuals have no "fundamental liberty interest" in deciding policy questions. There is a general right to vote, of course, and there is a right to speak and assemble and to engage in other forms of individual and collective political action, but there is no right to have a direct say on every policy question that governments face, even one as (supposedly) significant as the definition of marriage. After Sotomayor's intervention, the asserted "fundamental liberty interest in deciding the meaning of marriage" pretty much vanished from the argument and the exchanges between the lawyer and the Justices; it may have been so strange-sounding that everyone tacitly let it drop.
Still, behind the odd language about a "fundamental liberty interest in deciding the meaning of marriage," Bursch did have a more intelligible (if not especially convincing) claim: that "the people acting through the democratic process," not the federal courts, should decide on the definition of marriage. But it's not clear why that should be the case. As Kagan said (though not in these exact words), the Constitution puts limits both on the substantive decisions people can make and on what sorts of questions they get to decide.
No doubt these issues were explored exhaustively in the briefs that were filed in the case (none of which I've read), but the oral argument itself, which could conceivably have turned into a contentious seminar on democratic theory, was too choppy and disjointed to approach anything like that. Plato was mentioned (by Justice Alito at the outset), but the names of no other political theorists, classical or modern, came up in the argument. Maybe their ghosts were hovering around. Or maybe not.