Chief Justice Roberts lamented:
Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.
Obergefell v. Hodges, No. 14–556, slip op. at 42 (log.) (U.S. 26 Jun 2015) (Roberts, C.J., dissenting). No, it doesn't; neither does it leave any doubt about the Court's duty.
With all due respect, Mr Chief Justice, I think you're fundamentally wrong here. Under this reasoning, the Court in Loving — a case you cite with approval, id. at 45 (log.) — had no authority to force the state of Virginia to drop its "definition" of marriage as being between individuals of the same "race." Under this reasoning, the Court in Griffin was not empowered to reject the quasilegislative actions of a local school board in closing all public schools rather than admitting persons of all races to its schools without segregation.
The District Court held that "the public schools of Prince Edward County may not be closed to avoid the effect of the law of the land as interpreted by the Supreme Court, while the Commonwealth of Virginia permits other public schools to remain open at the expense of the taxpayers." At the same time the court gave notice that it would later consider an order to accomplish this purpose if the public schools were not reopened by September 7, 1962. That day has long passed, and the schools are still closed. On remand, therefore, the court may find it necessary to consider further such an order. An order of this kind is within the court's power if required to assure these petitioners that their constitutional rights will no longer be denied them. The time for mere "deliberate speed" has run out, and that phrase can no longer justify denying these Prince Edward County school children their constitutional rights to an education equal to that afforded by the public schools in the other parts of Virginia.
Griffin v. School Bd. of Prince Edward Cty., 377 U.S. 218, 233–34 (1964) (citations omitted).
Indeed, this is the entire point of enshrining rights in a separate Constitution that is not subject to endless legislative tampering.
If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution, would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.
Marbury v. Madison, 5 U.S. 137, 177–78 (1803).
The true difficulty here is that the Chief Justice does not acknowledge that an accepted fundamental right — marriage — may not be diminished through a definitional artifice by a portion of the government that is not charged with defining fundamental rights. This is functionally the same argument that shored up "separate but equal" for so long, to this nation's shame and disadvantage and (hopefully) regret. That the Virginia antimiscegenation law did not engage in the formal artifice of "defining" marriage as "between a man and a woman of the same race" made its function no less "definitional" as to who enjoyed a fundamental right.
Just as the time for deliberate speed has passed, so has the time for deferring to legislative (and quasilegislative) definitions whose effect — whose very intent — is to deny discernable segments of the citizenry fundamental rights accorded to the citizenry at large. That may make some policies difficult. It may create tension with other rights, such as a purported "free exercise" right to disregard "immoral" or "ahistorical" conduct (which leads to an obvious question regarding the right of Jewish or Muslim members of the Senate to object to the presence of pork-infused bean soup on the menu of the Senate cafeteria, as is presently required by law... especially when that law does not requiring koshering or other ritual cleansing of the bowls used to serve that soup). It does not, however, allow the courts to evade their duty in declaring that legislative and quasilegislative acts (or omissions) violate fundamental rights.
Only two of the three branches of government are elected in the federal system. Indeed, that unelected branch serves on good behavior once appointed. These are the biggest nonexplicit hints possible that the third branch is not supposed to be bound — not even swayed — by popular opinion, let alone legislative intransigence. This is what the concept of "checks and balances" described throughout the Federalist Papers is all about: That certain types of powers overlap when put into policy, and that different methods of reasoning apply to different kinds of powers. The power to declare a right is not legislative in nature; indeed, it is not electoral in nature, either.