DeBoer v. Snyder

772 F.3d 388, 2014 WL 5748990

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 6, 2014
• Docket: Nos. 14-1341, 14-3057, 14-3464, 14-5291, 14-5297, 14-5818
• Status: Published

Opinions

SUTTON, J., delivered the opinion of the court, in which COOK, J., joined. DAUGHTREY, J. (pp. 421-37), delivered a separate dissenting opinion.

OPINION

SUTTON, Circuit Judge.

This is a case about change — and how best to handle it under the United States Constitution. From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry;, it is when and how that will happen. That would not have seemed likely as recently as a dozen years ago. For better, for worse, or for more of the same, marriage has long been a social institution defined by relationships between men and women. So long defined, the tradition is measured in' millennia, not centuries or decades. So widely shared, the tradition until recently had been adopted by all governments and major religions of the world.

But things change, sometimes quickly. Since 2003, nineteen States and the District of Columbia have expanded the definition of marriage to include gay couples, some through state legislation, some through initiatives of the people, some through state court decisions, and some through the actions of state governors and attorneys general who opted not to appeal adverse court decisions. Nor does this momentum show any signs of slowing. Twelve of the nineteen States that now recognize gay marriage did so in the last couple of years. On top of that, four federal courts of appeals have compelled several other States .to permit same-sex marriages under the Fourteenth Amendment.

What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, liberty-assuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.

Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us — just two of us in truth — to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee. What we have authority to decide instead is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?

Through a mixture of common law decisions, statutes, and constitutional provisions, each State in the Sixth Circuit has long adhered to the traditional definition of marriage. Sixteen gay and lesbian couples claim that this definition violates their rights under the Fourteenth Amendment. The circumstances that gave rise to the challenges vary. Some involve a birth, others a death. Some involve concerns about property, taxes, and insurance, others death certificates and rights to visit a partner or partner’s child in the hospital. Some involve a couple’s effort to obtain a marriage license within their State, others an effort to achieve recognition of a marriage solemnized in another State. All seek dignity and respect, the same dignity and respect given to marriages between opposite-sex couples. And all come down to the same question: Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?

I.

Michigan. One case comes from Michigan, where state law has defined marriage as a relationship between a man and a woman since its territorial days. See An Act Regulating Marriages § 1 (1820), in 1 Laws of the Territory of Michigan 646, 646 (1871). The State reaffirmed this view in 1996 when it enacted a law that declared marriage “inherently a unique relationship between a man and a woman.” Mich. Comp. Laws § 551.1. In 2004, after the Massachusetts Supreme Judicial Court invalidated the Commonwealth’s prohibition on same-sex marriage, Goodridge v. Dep’t of Pub. Health, 440 Mass. 309, 798 N.E.2d 941 (2003), nearly fifty-nine percent of Michigan voters opted to constitutionalize the State’s definition of marriage. “To secure and preserve the benefits of marriage for our society and for future generations Of children,” the amendment says, “the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.” Mich. Const. art. I, § 25.

April DeBoer and Jayne Rowse, a lesbian couple living in Michigan, challenge the constitutionality of this definition. Marriage was not their first objective. DeBoer and Rowse each had adopted children as single parents, and both wanted to serve as adoptive parents for the other partner’s children. Their initial complaint alleged that Michigan’s adoption laws violated the Equal Protection Clause of the Fourteenth Amendment. The State moved to dismiss the lawsuit for lack of standing, and the district court tentatively. agreed. Rather than dismissing the action, the court “invit[ed the] plaintiffs to seek leave to amend their complaint to ... challenge” Michigan’s laws denying them a marriage license. DeBoer R. 151 at 3. DeBoer and Rowse accepted the invitation and filed a new complaint alleging that Michigan’s marriage laws violated the due process and equal protection guarantees of the Fourteenth Amendment.

Both sets of parties moved for summary judgment. The district court concluded that the dispute raised “a triable issue of fact” over whether the “rationales” for the Michigan laws furthered “a legitimate state interest,” and it held a nine-day trial on the issue. DeBoer R. 89 at 4, 8. The plaintiffs’ experts testified that same-sex couples raise children as well as opposite-sex couples, and that denying marriage to same-sex couples creates instabilities for their children and families. The defendants’ experts testified that the evidence regarding the comparative success of children raised in same-sex households is inconclusive. The district court sided with the plaintiffs. It rejected all of the State’s bases for its marriage laws and concluded that the laws failed to satisfy rational basis review.

Kentucky. Two cases challenge two aspects of Kentucky’s marriage laws. Early on, Kentucky defined marriage as “the union of a man and a woman.” Jones v. Hallaban, 501 S.W.2d 588, 589 (Ky.1973); see An Act for Regulating the Solemnization of Marriages § 1, 1798 Ky. Acts 49, 49-50. In 1998, the Kentucky legislature codified the common law definition. The statute says that “ ‘marriage’ refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.” Ky. Rev.Stat. § 402.005. In 2004, the Kentucky legislature proposed a constitutional amendment providing that “[o]nly a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky.” Ky. Const. § 233A. Seventy-four percent of the voters approved the amendment.

Two groups of plaintiffs challenge these Kentucky laws. One group, the fortuitously named Love plaintiffs, challenges the Commonwealth’s marriage-licensing law. Two couples filed that lawsuit: Timothy Love and Lawrence Ysunza, along with Maurice Blanchard and Dominique James. Both couples claim that the Fourteenth Amendment prohibits Kentucky from denying them marriage licenses.

The other group, the Bourke plaintiffs, challenges the ban on recognizing out-of-state same-sex marriages. Four same-sex couples filed the lawsuit: Gregory Bourke and Michael DeLeon; Jimmy Meade and Luther Barlowe; Randell Johnson and Paul Campion; and Kimberly Franklin and Tamer a Boyd. All four couples were married outside Kentucky, and they contend that the State’s recognition ban violates their due process and equal protection rights. Citing the hardships imposed on them by the recognition ban — loss of tax breaks, exclusion from intestacy laws, loss of dignity — they seek to enjoin its enforcement.

The district court ruled for the plaintiffs in both eases. In Love, the court held that the Commonwealth could not justify its definition of marriage on rational basis grounds. It also thought that classifications based on sexual orientation should be subjected to intermediate scrutiny, which the Commonwealth also failed to satisfy. In Bourke, the court invalidated the recognition ban on rational basis grounds.

Ohio. Two cases challenge Ohio’s refusal to recognize out-of-state same-sex marriages. Ohio also has long adhered to the traditional definition of marriage. See An Act Regulating Marriages § 1, 1803 Ohio Laws 31, 31; Carmichael v. State, 12 Ohio St. 553, 560 (1861). It reaffirmed this definition in 2004, when the legislature passed a Defense of Marriage Act, which says that marriage “may only be entered into by one man and one woman.” Ohio Rev.Code § 3101.01(A). “Any marriage entered into by persons of the same sex in. any other jurisdiction,” it adds, “shall be considered and treated in all respects as having no legal force or effect.” Id. § 3101.01(C)(2). Later that same year, sixty-two percent of Ohio voters approved an amendment to the Ohio Constitution along the same lines. As amended, the Ohio Constitution says that Ohio recognizes only “a union between one man and one woman” as a valid marriage. Ohio Const, art. XV, § 11.

Two groups of plaintiffs challenge these Ohio laws. The first group, the Obergefell plaintiffs, focuses on one application of the law. They argue that Ohio’s refusal to recognize their out-of-state marriages on Ohio-issued death certificates violates due process and equal protection. Two same-sex couples in long-term, committed relationships filed the lawsuit: James Obergefell and John Arthur; and David Michener and William Herbert Ives. All four of them are from Ohio and were married in other States. When Arthur and Ives died, the State would not list Obergefell and Michener as spouses on their death certificates. Obergefell and Michener sought an injunction to require the State to list them as spouses on the certificates. Robert Grunn, a funeral director, joined the lawsuit, asking the court to protect his right to recognize same-sex marriages on other death certificates.

The second group, the Henry plaintiffs, raises a broader challenge. They argue that Ohio’s refusal to recognize out-of-state marriages between same-sex couples violates the Fourteenth Amendment no matter what marital benefit is affected. The Henry case involves four same-sex couples, all married in other States, who want Ohio to recognize their marriages on their children’s birth certificates. Three of the couples (Brittani Henry and Brittni Rogers; Nicole and Pam Yorksmith; Kelly Noe and Kelly McCracken) gave birth to children in Ohio and wish to have both of their names listed on each child’s birth certificate rather than just the child’s biological mother. The fourth couple (Joseph Vitale and Robert Talmas) lives in New York and adopted a child born in Ohio. They seek to amend their son’s Ohio birth certificate so that it lists both of them as parents.

The district court granted the plaintiffs relief in both cases. In Obergefell> the court concluded that the Fourteenth Amendment protects a fundamental right to keep existing marital relationships intact, and that the State failed to justify its law under heightened scrutiny. The court likewise concluded that classifications based on sexual orientation deserve heightened scrutiny under equal protection, and that Ohio failed to justify its refusal to recognize the couples’ existing marriages. Even under rational basis review, the court added, the State came up short. In Henry, the district court reached many of the same conclusions and expanded its recognition remedy to encompass all married same-sex couples and all legal incidents of marriage under Ohio law.

Tennessee. The Tennessee case is of a piece with the two Ohio cases and one of the Kentucky cases, as it too challenges the State’s same-sex-marriage recognition ban. Tennessee has always defined marriage in traditional terms. See An Act Concerning Marriages § 3 (1741), in Public Acts of the General Assembly of NorthCarolina and Tennessee 46, 46 (1815). In 1996, the Tennessee legislature reaffirmed “that the historical institution and legal contract solemnizing the relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state in order to provide the unique and exclusive rights and privileges to marriage.” TenmCode Ann. § 36-3-113(a). In 2006, the State amended its constitution to incorporate the existing definition' of marriage. See Tenn. Const, art. XI, § 18. Eighty percent of the voters supported the amendment.

Three same-sex couples, all in committed relationships, challenge the recognition ban: Valeria Tanco and Sophy Jesty; Ijpe DeKoe and Thomas Kostura; and Johno Espejo and Matthew Mansell. All three couples were legally married in other States. The district court preliminarily enjoined the law. Relying on district court decisions within the circuit and elsewhere, the court concluded that the couples likely would show that Tennessee’s ban failed to satisfy rational basis review. The remaining preliminary injunction factors, the court held, also weighed in the plaintiffs’ favor.

All four States appealed the decisions against them.

II.

Does the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment require States to expand the definition of marriage to include same-sex couples? The Michigan appeal (DeBoer) presents this threshold question, and so does one of the Kentucky appeals (Love). Caselaw offers many ways to think about the issue.

A.

Perspective of an intermediate court. Start with a recognition of our place in the hierarchy of the federal courts. As an “inferior” court (the Constitution’s preferred term, not ours), a federal court of appeals begins by asking what the Supreme Court’s precedents require on the topic at hand. Just such a precedent confronts us.

In the early 1970s, a Methodist minister married Richard Baker and James McConnell in Minnesota. Afterwards, they sought a marriage license from the State. When the clerk of the state court denied the request, the couple filed a lawsuit claiming that the denial of their request violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 186 (1971). The Minnesota Supreme Court rejected both claims. As for the due process claim, the state court reasoned: “The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.... This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause ... is not a charter for restructuring it by judicial legislation.” Id. As for the equal protection claim, the court reasoned: “[T]he state’s classification of persons authorized to marry” does not create, an “irrational or invidious discrimination. ... [Tjhat the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate ... [creates only a] theoretically imperfect [classification] ... [and] ‘abstract symmetry’ is not demanded by the Fourteenth Amendment.” Id. at 187. The Supreme Court’s decision four years earlier in Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), which invalidated Virginia’s ban on interracial marriages, did not change this conclusion. “[I]n commonsense and in a constitutional sense,” the state court explained, “there is a clear distinction between a marital restriction based merely upon - race and one based upon the fundamental difference in sex.” Baker, 191 N.W.2d at 187.

Baker and McConnell appealed to the United States Supreme Court. The Court rejected their challenge, issuing a one-line order stating that the appeal did not raise “a substantial federal question.” Baker v. Nelson, 409 U.S. 810, 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). This type of summary decision, it is true, does not bind the Supreme Court in later cases. But it does confine lower federal courts in later cases. It matters not whether we think the decision was right in its time, remains right today, or will be followed by the Court in the future. Only the Supreme Court may overrule its own precedents, and we remain bound even by its summary decisions “until such time as the Court informs [us] that [we] are not.” Hicks v. Miranda, 422 U.S. 332, 345, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (internal quotation marks omitted). The Court has yet to inform us that we are not, and we have no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves.

But that was then; this is now. And now, claimants insist, must account for United States v. Windsor, — U.S. -, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), which invalidated the Defense of Marriage Act of 1996, a law that refused for purposes of federal statutory benefits to respect gay marriages authorized by state law. Yet Windsor does not answer today’s question. The decision never mentions Baker, much less overrules it. And the outcomes of the cases do not clash. Windsor invalidated a federal law that refused to respect state laws permitting gay marriage, while Baker upheld the right of the people of a State to define marriage as they see it. To respect one decision does not slight the other. Nor does Windsor’s reasoning clash with Baker. Windsor hinges on the Defense of Marriage Act’s unprecedented intrusion into the States’ authority over domestic relations. Id. at 2691-92. Before the Act’s passage in 1996, the federal government had traditionally relied on state definitions of marriage instead of purporting to define marriage itself. Id. at 2691. That premise does not work — it runs the other way — in a case involving a challenge in federal court to state laws defining marriage. The point of Windsor was to prevent the Federal Government from “divest[ing]” gay couples of “a dignity and status of immense import” that New York’s extension of the definition of marriage gave them, an extension that “without doubt” any State could provide. Id. at 2692, 2695. Windsor made explicit that it does not answer today’s question, telling us that the “opinion and its holding are confined to ... lawful marriages” already protected by some of the States. Id. at 2696. Bringing the matter to a close, the Court held minutes after releasing Windsor that procedural obstacles in Hollingsworth v. Perry, — U.S. -, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013), prevented it from considering the validity of state marriage laws. Saying that the Court declined in Hollingsworth to overrule Baker openly but decided in Windsor to overrule it by stealth makes an unflattering and unfair estimate of the Justices’ candor.

Even if Windsor did not overrule Baker by name, the claimants point out, lower courts still may rely on “doctrinal developments” in the aftermath of a summary disposition as a ground for not following the decision. Hicks, 422 U.S. at 344, 95 S.Ct. 2281. And Windsor, they say, together with Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), and Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), permit us to cast Baker aside. But this reading of “doctrinal developments” would be a groundbreaking development of its own. From the perspective of a lower court, summary dispositions remain “controlling precedent, unless and until re-examined by [the Supreme] Court.” Tully v. Griffin, Inc., 429 U.S. 68, 74, 97 S.Ct. 219, 50 L.Ed.2d 227 (1976); see Hicks, 422 U.S. at 343-45, 95 S.Ct. 2281. And the Court has told us to treat the two types of decisions, whether summary dispositions or full-merits decisions, the same, “preventing] lower courts” in both settings “from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977). Lest doubt remain, the Court has also told us not to ignore its decisions even when they are in tension with a new line of cases. “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989); see Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997).

Just two scenarios, then, permit us to ignore a Supreme Court decision, whatever its form: when the Court has overruled the decision by name (if, say, Windsor had directly overruled Baker) or when the Court has overruled the decision by outcome (if, say, Hollingsworth had invalidated the California law without mentioning Baker). Any other approach returns us to a world in which the lower courts may anticipatorily overrule all manner of Supreme Court decisions based on counting-to-five predictions, perceived trajectories in the caselaw, or, worst of all, new appointments to the Court. In the end, neither of the two preconditions for ignoring Supreme Court precedent- applies here. Windsor as shown does not mention Baker, and it clarifies that its “opinion and holding” do not govern the States’ authority to define marriage. Hollingsworth was dismissed. And neither Lawrence nor Romer mentions Baker, and neither is inconsistent with its outcome. The one invalidates a State’s criminal antisodomy law and explains that the case “does not involve ... formal recognition” of same-sex relationships. Lawrence, 539 U.S. at 578, 123 S.Ct. 2472. The other invalidates a “[s]weeping” and “unprecedented” state law that prohibited local communities from passing laws that protect citizens from discrimination based on sexual orientation. Romer, 517 U.S. at 627, 633, 635-36, 116 S.Ct. 1620.

That brings us to another one-line order. On October 6, 2014, the Supreme Court “denied” the “petitions for writs of certiorari” in 1,575 cases, seven of which arose from challenges to decisions of the Fourth, Seventh, and Tenth Circuits that recognized a constitutional right to same-sex marriage. But this kind of action (or inaction) “imports no expression of opinion upon the merits of the case, as the bar has been told many times.” United States v. Carver, 260 U.S. 482, 490, 43 S.Ct. 181, 67 L.Ed. 361 (1923). “The ‘variety of considerations [that] underlie denials of the writ’ counsels against according denials of certiorari any precedential value.” Teague v. Lane, 489 U.S. 288, 296, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (internal citation omitted). Just as the Court’s three decisions to stay those same court of appeals decisions over the past year, all without a registered dissent, did not end the debate on this issue, so too the Court’s decision to deny certiorari in all of these appeals, all without a registered dissent, does not end the debate either. A decision not to decide is a decision not to decide.

But don’t these denials of certiorari signal that, from the Court’s perspective, the right to same-sex marriage is inevitable? Maybe; maybe not. Even if we grant the premise and assume that same-sex marriage will be recognized one day in all fifty States, that does not tell us how — whether through the courts or through democracy. And, if through the courts, that does not tell us why — whether through one theory of constitutional invalidity or another. Four courts of appeals thus far have recognized a constitutional right to same-sex marriage. They agree on one thing: the result.' But they reach that outcome in many ways, often more than one way in the same decision. See Bostic v. Schaefer, 760 F.3d 352 (4th Cir.2014) (fundamental rights); Baskin v. Bogan, 766 F.3d 648 (7th Cir.2014) (rational basis, animus); Latta v. Otter, No. 14-35420, 771 F.3d 456, 2014 WL 4977682 (9th Cir. Oct. 7, 2014) (animus, fundamental rights, suspect classification); Bishop v. Smith, 760 F.3d 1070 (10th Cir.2014) (fundamental rights); Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.2014) (same). The Court’s certiorari denials tell us nothing about the demoeracy-versus-litigation path to same-sex marriage, and they tell us nothing about the validity of any of these theories. If a federal court denies the people suffrage over an issue long thought to be within their power, they deserve an explanation. We, for bur part, cannot find one, as several other judges have concluded as well. See Bostic, 760 F.3d at 385-98 (Niemeyer, J., dissenting); Kitchen, 755 F.3d at 1230-40 (Kelly, J., concurring in part and dissenting in part); Conde-Vidal v. Garcia-Padilla, No. 14-1253-PG, — F.Supp.2d -, 2014 WL 5361987 (D.P.R. Oct. 21, 2014); Robicheaux v. Caldwell, 2 F.Supp.3d 910 (E.D.La.2014).

There are many ways, as these lower court decisions confirm, to look at this question: originalism; rational basis review; animus; fundamental rights; suspect classifications; evolving meaning. The parties in one way or another have invoked them all. Not one of the plaintiffs’ theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.

B.

Original meaning. All Justices, past and present, start their assessment of a case about the meaning of a constitutional provision by looking at how the provision was understood by the people who ratified it. If we think of the Constitution as a covenant between the governed and the governors, between the people and their political leaders, it is easy to appreciate the force of this basic norm of constitutional interpretation — that the originally understood meaning of the charter generally will be the lasting meaning of the charter. When two individuals sign a contract to sell a house, no one thinks that, years down the road, one party to the contract may change the terms of the deal. That is why the parties put the agreement in writing and signed it publicly — to prevent changed perceptions and needs from changing the guarantees in the agreement. So it normally goes with the Constitution: The written charter cements the limitations on government into an unbending bulwark, not a vane alterable whenever alterations occur — unless and until the people, like contracting parties, choose to change the contract through the agreed-upon mechanisms for doing so. See U.S. Const. art. V. If American lawyers in all manner of settings still invoke the original meaning of Magna Carta, a Charter for England in 1215, surely it is not too much to ask that they (and we) take seriously the original meaning of the United States Constitution, a Charter for this country in 1789. Any other approach, too lightly followed, converts federal judges from interpreters of the document into newly commissioned authors of it.

Many precedents gauging individual rights and national power, leading to all manner of outcomes, confirm the import of original meaning in legal debates. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-80, 2 L.Ed. 60 (1803); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401-25, 4 L.Ed. 579 (1819); Legal Tender Cases, 79 U.S. 457, 536-38, 12 Wall. 457, 20 L.Ed. 287 (1870); Myers v. United States, 272 U.S. 52, 110-39, 47 S.Ct. 21, 71 L.Ed. 160 (1926); INS v. Chadha, 462 U.S. 919, 944-59, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-25, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995); Washington v. Glucksberg, 521 U.S. 702, 710-19, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997); Crawford v. Washington, 541 U.S. 36, 42-50, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Boumediene v. Bush, 553 U.S. 723, 739-46, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008); Giles v. California, 554 U.S. 353, 358-61, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008); District of Columbia v. Heller, 554 U.S. 570, 576-600, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

In trying to figure out the original meaning of a provision, it is fair to say, the line between interpretation and evolution blurs from time to time. That is an occupational hazard for judges when it comes to old or generally worded provisions. Yet that knotty problem does not confront us. Yes, the Fourteenth Amendment is old; the people ratified it in 1868. And yes, it is generally worded; it says: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Nobody in this case, however, argues that, the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.

Tradition reinforces the point. Only months ago, the Supreme Court confirmed the significance of long-accepted usage in constitutional interpretation. In one case, the Court held that the customary practice of opening legislative meetings with prayer alone proves the constitutional permissibility of legislative prayer, quite apart from how that practice might fare under the most up-to-date Establishment Clause test. Town of Greece v. Galloway, — U.S. -, 134 S.Ct. 1811, 1818-20, 188 L.Ed.2d 835 (2014). In another case, the Court interpreted the Recess Appointments Clause based in part on long-accepted usage. NLRB v. Noel Canning, — U.S. -, 134 S.Ct. 2550, 2559-60, 189 L.Ed.2d 538 (2014). Applied here, this approach permits today’s marriage laws to stand until the democratic processes say they should stand no more. From the founding of the Republic to 2003, every State defined marriage as a relationship between a man and a woman, meaning that the Fourteenth Amendment permits, though it does not require, States to define marriage in that way.

C.

Rational basis review. Doctrine leads to the same place as history. A first requirement of any law, whether under the Due Process or Equal Protection Clause, is that it rationally advance a legitimate government policy. Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979).’ Two words (“judicial restraint,” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)) and one principle (trust in the people that “even improvident decisions will eventually be rectified by the democratic process,” Vance, 440 U.S. at 97, 99 S.Ct. 939) tell us all we need to know about the light touch judges should use in reviewing laws under this standard. So long as judges can conceive of some “plausible” reason for the law — any plausible reason, even one that did not motivate the legislators who enacted it — the law must stand, no matter how unfair, unjust, or unwise the judges may, consider it as citizens. Heller v. Doe, 509 U.S. 312, 330, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993); Nordlinger v. Hahn, 505 U.S. 1, 11, 17-18, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992).

A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States. Hesitant, yes; but still a rational basis, some rational basis, must exist for the definition. What is it? Two at a minimum suffice to meet this low bar. One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.

Once one accepts a need to establish such ground rules, and most especially a need to create stable family units for the planned and unplanned creation of children, one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them. One way to pursue this objective is to encourage couples to enter lasting relationships through subsidies and other benefits and to discourage them from ending such relationships through these and other means. People may not need the government’s encouragement to have sex. And they may not need the government’s encouragement to propagate the species. But they may well need the government’s encouragement to create and maintain stable relationship's within which children may flourish. It is not society’s laws or for that matter any one religion’s laws, but nature’s laws (that men and women complement each other biologically), that created the policy imperative. And governments typically are not second-guessed under the Constitution for prioritizing how they tackle such issues. Dandridge v. Williams, 397 U.S. 471, 486-87, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).

No doubt, that is not the only way people view marriage today. Over time, marriage has come to serve another value — to solemnize relationships characterized by love, affection, and commitment. Gay couples, ho less than straight couples, are capable of sharing such relationships. And gay couples, no less than straight couples, are capable of raising children and providing stable families for them. The quality of such relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment. All of this supports the policy argument made by many that marriage laws should be extended to gay couples, just as nineteen States have done through their own sovereign powers. Yet it does not show that the States, circa 2014, suddenly must look at this policy issue in just one way on pain of violating the Constitution.

The signature feature of rational basis review is that governments will not be placed in the dock for doing too much or for doing too little in addressing a policy question. Id. In a modern sense, crystallized at some point in the last ten years, many people now critique state marriage laws for doing too little — for being under-inclusive by failing to extend the definition of marriage to gay couples. Fair enough. But rational basis review does not permit courts to invalidate laws every time a new and allegedly better way .of addressing a policy emerges, even a better way supported by evidence and, in the Michigan case, by judicial factfinding. If legislative choices may rest on “rational speculation unsupported by evidence or empirical data,” Beach Commc’ns, 508 U.S. at 315, 113 S.Ct. 2096, it is hard to see the point of premising a ruling of unconstitutionality on factual findings made by one unelected federal judge that favor a different policy. Rational basis review does not empower federal courts to “subject” legislative line-drawing to “courtroom” factfinding designed to show that legislatures have done too much or too little. Id.

What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still relevant today, suffices to allow the States to retain authority over an issue they have regulated from the beginning.

To take another rational explanation for the decision of many States not to expand the definition of marriage, a State might wish to wait and see before changing a norm that our society (like all others) has accepted for eénturies. That is not preserving tradition for its own sake. No one here claims that the States’ original definition of marriage was unconstitutional when enacted. The plaintiffs’ claim is that the • States have acted irrationally in standing by the traditional definition in the face of changing social mores. Yet one of the key insights. of federalism is that it permits laboratories of experimentation — accent on the plural — allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time. As a matter of state law, the possibility of gay marriage became real in 2003 with the Massachusetts Supreme Judicial Court’s decision in Goodridge. Eleven years later, the clock has not run on assessing the benefits and burdens of expanding the definition of marriage. Eleven years indeed is not even the right time-line. The fair question is whether in 2004, one year after Goodridge, Michigan voters could stand by the traditional definition of marriage. How can we say that the voters acted irrationally for sticking with the seen benefits of thousands of years of adherence to the traditional definition of marriage in the face of one year of experience with a new definition of marriage? A State still assessing how this has worked, whether in 2004 or 2014, is not showing irrationality, just a sense of stability and an interest in seeing how the new definition has worked elsewhere. Even today, the only thing anyone knows for sure about the long-term impact of redefining marriage is that they do not know. A Burkean sense of caution does not violate the Fourteenth Amendment, least of all when measured by a timeline less than a dozen years long and when assessed by a system of government designed to foster step-by-step, not sudden winner-take-all, innovations to policy problems.

In accepting these justifications for the four States’ marriage laws, we do not deny the foolish, sometimes offensive, inconsistencies that have haunted marital legislation from time to time. States will hand some people a marriage license no matter how often they have divorced or remarried, apparently on the theory that practice makes perfect. States will not even prevent an individual from remarrying the same person three or four times, where practice no longer seems to be the issue. With love and commitment nowhere to be seen, States will grant a marriage license to two Mends who wish to share in the tax and other material benefits of marriage, at least until the State’s no-fault divorce laws allow them to exit the partnership freely. And States allow couples to continue procreating no matter how little stability, safety, and love they provide the children they already have. Nor has unjustified sanctimony stayed off the stage when it comes to marital legislation — with monogamists who “do not monog” criticizing alleged polygamists who “do not polyg.” See Paul B. Beers, Pennsylvania Politics Today and Yesterday 51 (1980).

How, the claimants ask, could anyone possibly be unworthy of this civil institution? Aren’t gay and straight couples both capable of honoring this civil institution in some cases and of messing it up in others? All of this, however, proves much too much. History is replete with examples of love, sex, and marriage tainted by hypocrisy. Without it, half of the world’s literature, and three-quarters of its woe, would disappear. Throughout, we have never leveraged these inconsistencies about deeply personal, sometimes existential, views of marriage into a ground for constitutionalizing the field. Instead, we have allowed state democratic forces to fix the problems as they emerge and as evolving community mores show they should be fixed. Even if we think about today’s issue and today’s alleged inconsistencies solely from the perspective of the claimants in this case, it is difficult to call that formula, already coming to terms with a new view of marriage, a failure.

Any other approach would create line-drawing problems of its own. Consider how plaintiffs’ love-and-commitment definition of marriage would fare under their own rational basis test. Their definition does too much because it fails to account for the reality that no State in the country requires couples, whether gay or straight, to be in love. Their definition does too little because it fails to account for plural marriages, where there is no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot. If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage. Plaintiffs have no answer to the point. What they might say they cannot: They might say that tradition or community mores provide a rational basis for States to stand by the monogamy definition of marriage, but they cannot say that because that is exactly what they claim is illegitimate about the States’ male-female definition of marriage. The predicament does not end there. No State is free of marriage policies that go too far in some directions and not far enough in others, making all of them vulnerable — if the claimants’ theory of rational basis review prevails.

Several cases illustrate just how seriously the federal courts must take the line-drawing deference owed the democratic process under rational basis review. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), holds that a State may require law enforcement officers to retire without exception at age fifty, in order to assure the physical fitness of its police force. If a rough correlation between age and strength suffices to uphold exception-free retirement ages (even though some fifty-year-olds swim/bike/run triathlons), why doesn’t a correlation between male-female intercourse and procreation suffice to uphold traditional marriage laws (even though some straight couples don’t have kids and many gay couples do)? Armour v. City of Indianapolis, — U.S. -, 132 S.Ct. 2073, 182 L.Ed.2d 998 (2012), says that if a city cancels a tax, the bureaucratic hassle of issuing refunds entitles it to keep money already collected from citizens who paid early. If administrative convenience amounts to an adequate public purpose, why not a rough sense of social stability? More deferential still, Kotch v. Board of River Port Pilot Commissioners, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093 (1947), concludes that a State’s interest in maintaining close ties among those who steer ships in its ports justifies denying pilotage licenses to anyone who isn’t a friend or relative of an incumbent pilot. Can we honestly say that traditional marriage laws involve more irrationality than nepotism ?

The debate over marriage of course has another side, and we cannot deny the costs to the plaintiffs of allowing the States to work through this profound policy debate. The traditional definition of marriage denies gay couples the opportunity to publicly solemnize, to say nothing of subsidize, their relationships under state law. In addition to depriving them of this status, it deprives them of benefits that range from the profound (the right to visit someone in a hospital as a spouse or parent) to the mundane (the right to file joint tax returns). These harms affect not only gay couples but also their children. Do the benefits of standing by the traditional definition of marriage make up for these costs? The question demands an answer — but from elected legislators, not life-tenured judges. Our task under the Supreme Court’s precedents is to decide whether the law has some conceivable basis, not to gauge how that rationale stacks up against the arguments on the other side. Respect for democratic control over this traditional area of state expertise ensures that “a statewide deliberative process that enable[s] its citizens to discuss and weigh arguments for and against same-sex marriage” can have free and reasonable rein. Windsor, 133 S.Ct. at 2689.

D.

Animus. Given the broad deference owed the States under the democracy-reinforcing norms of rational basis review, the cases in which the Supreme Court has struck down a state law on that basis are few. When the Court has taken this step, it usually has been due to the novelty of the law and the targeting of a single group for disfavored treatment under it. In one case, a city enacted a new zoning code with the none-too-subtle purpose of closing down a home for the intellectually disabled in a neighborhood that apparently wanted nothing to do with them. The reality that the code applied only to homes for the intellectually disabled — and not to other dwellings such as fraternity houses — led the Court to invalidate the regulation on the ground that the city had based it upon “an irrational prejudice against the mentally retarded.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 450, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). In another case, a statewide initiative denied gays, and gays alone, access to the protection of the State’s existing antidiscrimination laws. The novelty of the law, coupled with the distance between the reach of the law and any legitimate interest it might serve, showed that the law was “born of animosity toward” gays and suggested a design to make gays “unequal to everyone else.” Romer, 517 U.S. at 634-35, 116 S.Ct. 1620.

None of the statewide initiatives at issue here fits this pattern. The four initiatives, enacted between 2004 and 2006, codified a long-existing, widely held social norm already reflected in state law. “[MJarriage between a man and a woman,” as the Court reminded us just last year, “had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” Windsor, 133 S.Ct. at 2689.

Neither was the decision to place the definition of marriage in a State’s constitution unusual, nor did it otherwise convey the kind of malice or unthinking prejudice the Constitution prohibits. Nineteen States did the same thing during that period. Human Rights Campaign Found., Equality from State to State 2006, at 13-14 (2006), available at http://s3.amazonaws. com/hrc-assets//files/assets/resources/State ToState2007.pdf. And if there was one concern animating the initiatives, it was the fear that the courts would seize control over an issue that people of good faith care deeply about. If that is animus, the term has no useful meaning.

Who in retrospect can blame the voters for having this fear? By then, several state courts had altered their States’ traditional definitions of marriage under the States’ constitutions. Since then, more have done the same. Just as state judges have the authority to construe a state constitution as they see fit, so do the people have the right to overrule such decisions or preempt them as they see fit. Nor is there anything static about this process. In some States, the people have since re-amended their constitutions to broaden the category of those eligible to marry. In other States, the people seemed primed to do the same but for now have opted to take a wait-and-see approach of their own as’federal litigation proceeds. See, e.g., Wesley Lowery, Same-Sex Marriage Is Gaining Momentum, but Some Advocates Don’t Want It on the Ballot in Ohio, Wash. Post (June 14, 2014), http://www. washingtonpost.com/politics/same-sexmarriage-is-gaining-momentum-but-ohioadvocates-dont-want-it-on-the-ballot/ 2014/06/14/a090452-ae77e-lle3-afc6-aldd 9407abcf_story.html (explaining that Ohio same-sex marriage advocates opted not to place the question on the 2014 state ballot despite collecting nearly twice the number of required signatures). What the Court recently said about another statewide initiative that people care passionately about applies with equal vigor here: “Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.” Schuette v. Coal. to Defend Affirmative Action, — U.S. -, 134 S.Ct. 1623, 1638, 188 L.Ed.2d 613 (2014). “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” Id. at 1637.

What of the possibility that other motivations affected the amendment process in the four States? If assessing the motives of multimember legislatures is difficult, assessing the motives of all voters in a statewide initiative strains judicial competence. The number of people who supported each initiative — Michigan (2.7 million), Kentucky (1.2 million), Ohio (3.3 million), and Tennessee (1.4 million) — was • large and surely diverse. In addition to the proper role of the courts in a democracy, many other factors presumably influenced the voters who supported and opposed these amendments: that some politicians favored the amendment and others opposed it; that some faith groups favored the amendment and others opposed it; that some thought the amendment would strengthen families and others thought it would weaken them or were not sure; that some thought the amendment would be good for children and others thought it would not be or were not sure; and that some thought the amendment would preserve a long-established definition of marriage and others thought it was time to accommodate gay couples. Even a rough sense of morality likely affected voters, with some thinking it immoral to exclude gay couples and others thinking the opposite. For most people, whether for or against the amendment, the truth of why they did what they did is assuredly complicated, making it impossible to pin down any one consideration, as opposed to a rough aggregation of factors, as motivating them. How in this setting can we indict the 2.7 million Michigan voters who supported the amendment in 2004, less than one year after the first state supreme court recognized a constitutional right to gay marriage, for favoring the amendment for prejudicial reasons and for prejudicial reasons alone? Any such conclusion cannot be squared with the benefit of the doubt customarily given voters and legislatures under rational basis review. Even the gay-rights community, remember, was not of one mind about taking on the benefits and’ burdens of marriage until the early 1990s. See George Chauncey, Why Marriage? The History Shaping Today’s Debate over Gay Equality 58, 88 (2004); Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage 48-52 (2013). A decade later, a State’s voters should not be taken to task for failing to be of one mind about the issue themselves.

Some equanimity is in order in assessing the motives of voters who invoked a constitutionally respected vehicle for change and for resistance to change: direct democracy. See Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 151, 32 S.Ct. 224, 56 L.Ed. 377 (1912). Just as gay individuals are no longer abstractions, neither should we treat States as abstractions. Behind these initiatives were real people who teach our children, create our jobs, and defend our shores. Some of these people supported the initiative in 2004; some did not. It is no less unfair to paint the proponents of the measures as a monolithic group of hate-mongers than it is to paint the opponents as a monolithic group trying to undo American families. “Tolerance,” like respect and dignity, is best traveled on a “two-way street.” Ward v. Polite, 667 F.3d 727, 735 (6th Cir.2012). If there is a dominant theme to the Court’s cases in this area, it is to end otherness, not to create new others.

All of this explains why the Court’s decisions in City of Cleburne and Romer do not turn on reading the minds of city voters in one case or of statewide initiative supporters in the other. They turn on asking whether anything but prejudice to the affected class could explain the law. See City of Cleburne, 473 U.S. at 450, 105 S.Ct. 3249; Romer, 517 U.S. at 635, 116 S.Ct. 1620. No such explanations existed in those cases. Plenty exist here, as shown above and as recognized by many others. See Lawrence, 539 U.S. at 585, 123 S.Ct. 2472 (O’Connor, J., concurring in the judgment) (“Unlike the moral disapproval of same-sex relations[,] ... other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.”); Bishop, 760 F.3d at 1104-09 (Holmes, J., concurring) (same); Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 868 (8th Cir.2006) (enactment not “ ‘inexplicable by anything but animus’ towards same-sex couples”); Conaway v. Deane, 401 Md. 219, 932 A.2d 571, 635 (2007) (no reason to “infer antipathy”); Hernandez v. Robles, 7 N.Y.3d 338, 821 N.Y.S.2d 770, 855 N.E.2d 1, 8 (2006) (those who favor the traditional definition are not “irrational, ignorant or bigoted”); Andersen v. King Cnty., 158 Wash.2d 1, 138 P.3d 963, 981 (2006) (en banc) (“the only reason” for the law was not “anti-gay sentiment”).

One other point. Even if we agreed with the claimants that the nature of these state constitutional amendments, and the debates surrounding them, required their invalidation on animus grounds, that would not give them what they request in their complaints: the right to same-sex marriage. All that the invalidation of the amendments would do is return state law to where it had always been, a status quo that in all four States included state statutory and common law definitions of marriage applicable to one man and one woman — definitions that no one claims were motivated by ill will. The elimination of the state constitutional provisions, it is true, would allow individuals to challenge the four States’ other marital laws on state constitutional grounds. No one filed such a challenge here, however.

E.

Fundamental right to marry. Under the Due Process Clause, courts apply more muscular review — “strict,” “rigorous,” usually unforgiving, scrutiny — to laws that impair “fundamental” rights. In considering the claimants’ arguments that they have a fundamental right to marry each other, we must keep in mhj.d that something can be fundamentally important without being a fundamental right under the Constitution. Otherwise, state regulations of many deeply important subjects— from education to healthcare to living conditions to decisions about when to die— would be subject to unforgiving review. They are not. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (public education); Maher v. Roe, 432 U.S. 464, 469, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977) (healthcare); Lindsey v. Normet, 405 U.S. 56, 73-74, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972) (housing); Glucksberg, 521 U.S. at 728, 117 S.Ct. 2258 (right to die). Instead, the question is whether our nation has treated the right as fundamental and therefore worthy of protection under substantive due process. More precisely, the test is whether the right is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U.S. at 721, 117 S.Ct. 2258 (internal' citations omitted). That requirement often is met by placing the right in the Constitution, most obviously in (most of) the guarantees in the Bill of Rights. See id. at 720, 117 S.Ct. 2258. But the right to marry in general, and the right to gay marriage in particular, nowhere appear in the Constitution. That route for recognizing a fundamental right to same-sex marriage does not exist.

That leaves the other option — that, even though a proposed right to same-sex marriage does not appear in the Constitution, it turns on bedrock assumptions about liberty. This too does not work. The first state high court to redefine marriage to include gay couples did not do so until 2003 in Goodridge.

Matters do not change because Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), held that “marriage” amounts to a fundamental right. When the Court decided Loving, “marriage between a man and a woman no doubt [was] thought of ... as essential to the very definition of that term.” Windsor, 133 S.Ct. at 2689. In referring to “marriage” rather than “opposite-sex marriage,” Loving confirmed only that “opposite-sex marriage” would have been considered redundant, not that marriage included same-sex couples. Loving did not change the definition. That is why the Court said marriage is “fundamental to our very existence and survival,” 388 U.S. at 12, 87 S.Ct. 1817, a reference to the procreative definition of marriage. Had a gay African-American male and a gay Caucasian male been denied a marriage license in Virginia in 1968, would the Supreme Court have held that Virginia had violated the Fourteenth Amendment? No one to our knowledge thinks so, and no Justice to our knowledge has ever said so. The denial of the license would have turned not on the races of the applicants but on a request to change the definition of marriage. Had Loving meant something more when it pronounced marriage a fundamental right, how could the Court hold in Baker five years later that gay marriage does not even raise a substantial federal question? Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage.

A similar problem confronts the claimants’ reliance on other decisions treating marriage as a fundamental right, whether in the context of a statute denying marriage licenses to fathers who could not pay child support, Zablocki v. Redhail, 434 , 98 S.Ct. 673, 54 L.Ed.2d 618 (1978), or a regulation restricting prisoners’ ability to obtain marriage licenses, Turner v. Safley, 482 U.S. 78, 94-95, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). It strains credulity to believe that a year after each decision a gay indigent father could have required the State to grant him a marriage license for his partnership or that a gay prisoner could have required the State to permit him to marry a gay partner. When Loving and its progeny used the word marriage, they did not redefine the term but accepted its traditional meaning.

No doubt, many people, many States, even some dictionaries, now define marriage in a way that is untethered to biology. But that does not transform the fundamental-rights decision of Loving under the old definition into a constitutional right under the new definition. The question is whether the old reasoning applies to the new setting, not whether we can shoehorn new meanings into old words. Else, evolving-norm lexicographers would have a greater say over the meaning of the Constitution than judges.

The upshot of fundamental-rights status, keep in mind, is strict-scrutiny status, subjecting all state eligibility rules for marriage to rigorous, usually unforgiving, review. That makes little sense with respect to the trials and errors societies historically have undertaken (and presumably will continue to undertake) in determining who may enter and leave a marriage. Start with the duration of a marriage. For some, marriage is a commitment for life and beyond. For others, it is a commitment for life. For still others, it is neither. In 1969, California enacted the first pure no-fault divorce statute. See Family Law Act of 1969, 1969 Cal. Stat. 3312. A dramatic expansion of similar laws followed. See Lynn D; Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L.Rev. 79, 90. The Court has never subjected these policy fits and starts about who may leave a marriage to strict scrutiny.-

Consider also the number of people eligible to marry. As late as the eighteenth century, “[t]he predominance of monogamy was by no means a foregone conclusion,” and “[m]ost of the peoples and cultures around the globe” had adopted a different system. Nancy F. Cott, Public Vows: A History of Marriage and the Nation 9 (2000). Over time, American officials wove monogamy into marriage’s fabric. Beginning in the nineteenth century, the federal government “encouraged or forced” Native Americans to adopt the policy, and in 1878 the Supreme Court upheld a federal antibigamy law. Id. at 26; see Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878). The Court has never taken this topic under its wing. And if it did, how would the constitutional, as opposed to policy, arguments in favor of same-sex marriage not apply to plural marriages?

Consider finally the nature of the indi•viduals eligible to marry. The age of consent has not remained constant, for example. Under Roman law, men could marry at fourteen, women at twelve. The American colonies imported that rule from England and kept it until the mid-1800s, when the people began advocating for a higher minimum age. Today, all but two States set the number at eighteen. See Vivian E. Hamilton, The Age of Marital Capacity: Reconsidering Civil Recognition of Adolescent Marriage, 92 B.U. L.Rev. 1817, 1824-32 (2012). The same goes for the social acceptability of marriage between cousins, a union deemed “desirable in many parts of the world”; indeed, around “10 percent of marriages worldwide are between people who are second cousins or closer.” Sarah Kershaw, Living Together: Shaking Off the Shame, N.Y. Times (Nov. 25, 2009), http://www.nytimes.com/2009/ll/ 26/garden/26cousins.html. Even in the United States, cousin marriage was not prohibited until the mid-nineteenth' century, when Kansas — followed by seven other States — enacted the first ban. See Diane B. Paul & Hamish G. Spencer, “It’s Ok, We’re Not Cousins by Blood”: The Cousin Marriage Controversy in Historical Perspective, 6 PLoS Biology 2627, 2627 (2008). The States, however, remain split: half of them still permit the practice. Ghassemi v. Ghassemi 998 So.2d 731, 749 (La.Ct.App.2008). Strict scrutiny? Neither Loving nor any other Supreme Court decision says so.

F.

Discrete and insular class without political power. A separate line of cases, this one under the Equal Protection Clause, calls for heightened review of laws that target groups whom legislators have singled out for unequal treatment in the past. This argument faces an initial impediment. Our precedents say that rational basis review applies to sexual-orientation classifications. See Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir.2012); Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260-61 (6th Cir.2006); Stemler v. City of Florence, 126 F.3d 856, 873-74 (6th Cir.1997).

There is another impediment. The Supreme Court has never held that legislative classifications based on sexual orientation receive heightened review and indeed has not recognized a new suspect class in moré than four decades. There are ample reasons for staying the course. Courts consider four rough factors in deciding whether to treat a legislative classification as suspect and presumptively unconstitutional: whether the group has been historically victimized by governmental discrimination; whether it has a defining characteristic that legitimately bears on the classification; whether it exhibits unchanging characteristics that define it as a discrete group; and whether it is politically powerless. See Rodriguez, 411 U.S. at 28, 93 S.Ct. 1278.

We cannot deny the lamentable reality that gay individuals have experienced prejudice in this country, sometimes at the hands of public officials, sometimes at the hands of fellow citizens. Stonewall, Anita Bryant’s uninvited answer to the question “Who are we to judge?”, unequal enforcement of antisodomy laws between gay and straight partners, Matthew Shepard, and the language of insult directed at gays and others make it hard for anyone to deny the point. But we also cannot deny that the institution of marriage arose independently of this record of discrimination. The traditional definition of marriage goes back thousands of years and spans almost every society in history. By contrast, “American laws targeting same-sex couples did not develop until the last third of the 20th century.” Lawrence, 539 U.S. at 570, 123 S.Ct. 2472. This order of events prevents us from inferring from history that prejudice against gays led to the traditional definition of marriage in the same way that we can infer from history that prejudice against African Americans led to laws against miscegenation. The usual leap from history of discrimination to intensification of judicial review does not work.

Windsor says nothing to the contrary. In arguing otherwise, plaintiffs mistake Windsors avoidance of one federalism question for avoidance of federalism altogether. Here is the key passage:

Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. “ ‘[Discriminations of an unusual character especially . suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’ ”

Windsor, 133 S.Ct. at 2692 (quoting Romer, 517 U.S. at 633, 116 S.Ct. 1620). Plaintiffs read these words (and others that follow) as an endorsement of heightened review in today’s case, pointing to the first two sentences as proof that individual dignity, not federalism, animates Windsor's holding.

Yet federalism permeates both parts of this passage and both parts of the opinion. Windsor begins by expressing doubts about whether Congress has the delegated power to enact a statute like DOMA at all. But instead of resolving the case on the far-reaching enumerated-power ground, 'it resolves the case on the narrower Romer ground — that anomalous exercises of power targeting a single group raise suspicion that bigotry rather than legitimate policy is afoot. Why was DOMA anomalous? Only federalism can supply the answer. The national statute trespassed upon New York’s time-respected authority to define the marital relation, including by “enhancing] the recognition, dignity, and protection” of gay and lesbian couples. Id. Today’s case involves no such “divest[ing]”/“depriv[ing]”/“undermin[ing]” of a marriage status granted through a State’s authority over domestic relations within its borders and thus provides no basis for inferring that the purpose of the state law was to “impose a disadvantage”/¹^ separate status”/“a stigma” on gay couples. Id. at 2692-95. When the Framers “split the atom of sovereignty,” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995) (Kennedy, J., concurring), they did so to enhance liberty, not to allow the National Government to divest liberty protections granted by the States in the exercise of their historic and in this instance nearly exclusive power. What we have here is something entirely different. It is the States doing exactly what every State has been doing for hundreds of years: defining marriage as they see it. The only thing that has changed is the willingness of many States over the last eleven years to expand the definition of marriage to encompass gay couples.

Any other reading of Windsor would require us to subtract key passages from the opinion and add an inverted holding. The Court noted that New York “without doubt” had the power under its traditional authority over marriage to extend the definition of marriage to include gay couples and that Congress had no power to enact “unusual” legislation that interfered with the States’ long-held authority to define marriage. Windsor, 133 S.Ct. at 2692-93. A decision premised on heightened scrutiny under the Fourteenth Amendment that redefined marriage nationally to include same-sex couples not only would divest the States of their traditional authority over this issue, but it also would authorize Congress to do something no one would have thought possible a few years ago — to use its Section 5 enforcement powers to add new definitions and extensions of marriage rights in the years ahead. That would leave the States with little authority to resolve ever-changing debates about how to define marriage (and the benefits and burdens that come with it) outside the beck and call of Congress and the Court. How odd that one branch of the National Government (Congress) would be reprimanded for entering the fray in 2013 and two branches of the same Government (the Court and Congress) would take control of the issue a short time later.

Nor, as the most modest powers of observation attest, is this a setting in which “political powerlessness” requires “extraordinary protection from the majoritarian political process.” Rodriguez, 411 U.S. at 28, 93 S.Ct. 1278. This is not a setting in which dysfunction mars the political process. See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). It is not a setting in which the recalcitrance of Jim Crow demands judicial, rather than we-can’t-wait-forever legislative, answers. See Brown v. Bd. of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). It is not a setting in which time shows that even a potentially powerful group cannot make headway on issues of equality. See Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). It is not a setting where a national crisis — the Depression— seemingly demanded constitutional innovation. See W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937). And it is not a setting, most pertinently, in which the local, state, and federal governments historically disenfranchised the suspect class, as they did with African Americans and women. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938).

Instead, from the claimants’ perspective, we have an eleven-year record marked by nearly as many successes as defeats and a widely held assumption that the future holds more promise than the past — if the federal courts will allow that future to take hold. Throughout that time, other advances for the claimants’ cause are manifest. Nationally, “Don’t Ask, Don’t Tell” is gone. Locally, the Cincinnati charter amendment that prevented gay individuals from obtaining certain preferences from the city, upheld by our court in 1997, Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289-(6th Cir.1997), is no more. The Fourteenth Amendment does not insulate influential, indeed eminently successful, interest groups from a defining attribute of all democratic initiatives — some succeed, some fail — particularly when succeeding more and failing less are in the offing.

Why, it is worth asking, the sudden change in public opinion? If there is one thing that seems to challenge hearts and minds, even souls, on this issue, it is the transition from the abstract to the concrete. If twenty-five percent of the population knew someone who was openly gay in 1985, and seventy-five percent knew the same in 2000, Klarman, supra, at 197, it is fair to wonder how few individuals still have not been forced to think about the matter through the lens of a gay friend or family member. That would be a discrete and insular minority.

The States’ undoubted power over marriage provides an independent basis for reviewing the laws before us with deference rather than with skepticism. An analogy shows why. When a state law targets noncitizens — a group marked by its lack of political power and its history of enduring discrimination — it must in general meet the most demanding of constitutional tests in order to survive a skirmish with a court. But when a federal law targets noncitizens, a mere rational basis will save it from invalidation. This disparity arises because of the Nation’s authority (and the States’ corresponding lack of authority) over international affairs. Mathews v. Diaz, 426 U.S. 67, 84-85, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). If federal preeminence in foreign relations requires lenient review of federal immigration classifications, why doesn’t state preeminence in domestic relations call for equally lenient review of state marriage definitions?

G.

Evolving meaning. If all else fails, the plaintiffs invite us to consider that “[a] core strength of the American legal system ... is its capacity to evolve” in response to new ways of thinking about old policies. DeBoer Appellees’ Br. at 57-58. But even if we accept this invitation and put aside the past — original meaning, tradition, time-respected doctrine — that does not také the plaintiffs where they wish to go. We could, to be sure, look at this case alongside evolving moral and policy considerations. The Supreme Court has' done so before. Lawrence, 539 U.S. at 573, 123 S.Ct. 2472. It may do so again. “A prime part of the history of our Constitution ... is the story of the extension of constitutional rights ... to people once ignored or excluded.” United States v. Virginia, 518 U.S. 515, 557, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). Why not do so here?

Even on this theory, the marriage laws do not violate the Constitution. A principled jurisprudence of constitutional evolution turns on evolution in society’s values, not evolution in judges’ values. Freed of federal-court intervention, thirty-one States would continue to define marriage the old-fashioned way. Lawrence, by contrast, dealt with a situation in which just thirteen States continued to prohibit sodomy, and even then most of those laws had fallen into desuetude, rarely being enforced at all. On this record, what right do we have to say that societal values, as opposed to judicial values, have evolved toward agreement in favor of same-sex marriage?

The theory of the living constitution rests on the premise that every generation has the right to govern itself. If that premise prevents judges from insisting on principles that society has moved past, so too should it prevent judges from anticipating principles that society has yet to embrace. It follows that States must enjoy some latitude in matters of timing, for reasonable people can disagree about just when public norms have evolved enough to require a democratic response. Today’s case captures the point. Not long ago American society took for granted the rough correlation between marriage and creation of new life, a vision under which limiting marriage to opposite-sex couples seemed natural. Not long from now, if current trends continue, American society may define marriage in terms of affirming mutual love, a vision under which the failure to add loving gay couples seems unfair. Today’s society has begun to move past the first picture of marriage, but it has not yet developed a consensus on the second.

If, before a new consensus has emerged on a social issue, federal judges may decide when the time is ripe to recognize a new constitutional right, surely the people should receive some deference in deciding when the time is ripe to move from one picture of marriage to another. So far, not a single United States Supreme Court Justice in American history has written an opinion maintaining that the traditional definition of marriage violates the Fourteenth Amendment. No one would accuse the Supreme Court of acting irrationally in failing to recognize a right to same-sex marriage in 2013. Likewise, we should hesitate to accuse the States of acting irrationally in failing to recognize the right in 2004 or 2006 or for that matter today. Federal judges engaged in the inherent pacing that comes with living constitutionalism should appreciate the inherent pacing that comes with democratic majorities deciding within reasonable bounds when and whether to embrace an evolving, as opposed to settled, societal norm. The one form of pacing is akin to the other, making it anomalous for the Court to hold that the States act unconstitutionally when making reasonable pacing decisions of their own.

From time to time, the Supreme Court has looked beyond our borders in deciding when to expand the meaning of constitutional guarantees. Lawrence, 539 U.S. at 576, 123 S.Ct. 2472. Yet foreign practice only reinforces the impropriety of tinkering with the democratic process in this setting. The great majority of countries across the world — including such progressive democracies as Australia and Finland — still adhere to the traditional definition of marriage. Even more telling, the European Court of Human Rights ruled only a few years ago that European human rights laws do not guarantee a right to same-sex marriage. Schalk & Kopf v. Austria, 2010-IV Eur. Ct. H.R. 409. “The area in question,” it explained in words that work just as well on this side of the Atlantic, remains “one of evolving rights with no established consensus,” which means that States must “enjoy [discretion] in the timing of the introduction of legislative changes.” Id. at 438. It reiterated this conclusion as recently as this July, declaring that “the margin of appreciation to be afforded” to States “must still be a wide one.” Hämäläinen v. Finland, No. 37359/09, HUDOC, at *19 (Eur.Ct.H.R. July 16, 2014). Our Supreme Court relied on the European Court’s gay-rights decisions in Lawrence. 539 U.S. at 576, 123 S.Ct. 2472. What neutral principle of constitutional interpretation allows us to ignore the European Court’s same-sex marriage decisions when deciding this case? If the point is relevant in the one setting, it is relevant in the other, especially in a case designed to treat like matters alike.

Other practical considerations also do not favor the creation of a new constitutional right here. While these cases present a denial of access to many benefits, what is “[o]f greater importance” to the claimants,'as they see it, “is the loss of ... dignity and respect” occasioned by these laws. Love Appellees’ Br. at 5. No doubt there is much to be said for “dignity and respect” in the eyes of the Constitution and its interpreters.' But any loss of dignity and respect on this issue did not come from the Constitution. It came from the neighborhoods and communities in which gay and lesbian couples live, and in which it is worth trying to correct the problem in the first instance- — and in that- way “to allow the formation of consensus respecting the way the members” of a State “treat each other in their daily contact and constant interaction with each other.” Windsor, 133 S.Ct. at 2692.

For all of the power that comes with the authority to interpret the United States Constitution, the federal courts have no long-lasting capacity to change what people think and believe about new social questions. If the plaintiffs are convinced that litigation is the best way to resolve today’s debate and to change heads and hearts in the process, who are we to say? Perhaps that is not the only point, however. Yes, we cannot deny thinking the plaintiffs deserve better — earned victories through initiatives and legislation and the greater acceptance that comes with them. But maybe the American people too deserve better — not just in the sense of having a say through representatives in the legislature rather than through representatives in the courts, but also in the sense of having to come face to face with the issue. Rights need not be countermajoritarian to count. See, e.g., Civil Rights Act of 1964, Pub.L. No. 88352, 78 Stat. 241. Isn’t the goal to create a culture in which a majority of citizens dignify and respect the rights of minority groups through majoritarian laws rather than through decisions issued by a majority of Supreme Court Justices? It is dangerous and demeaning to the citizenry to assume that we, and only we, can fairly understand the arguments for and against gay marriage.

Last, but not least, federal courts never expand constitutional guarantees in a vacuum. What one group wants on one issue from the courts today, another group will want on another issue tomorrow. The more the Court innovates under the Constitution, the more plausible it is for the Court to do still more — and the more plausible it is for other advocates on behalf of other issues to ask the Court to innovate still more. And while the expansion of liberal and conservative constitutional rights will solve, or at least sidestep, the amendment-difficulty problem that confronts many individuals and interest groups, it will exacerbate the judge-confirmation problem. Faith in democracy with respect to issues that the Constitution has not committed to the courts reinforces a different, more sustainable norm.

III.

Does the Constitution prohibit a State from denying recognition to same-sex marriages conducted in other States? That is the question presented in the two Ohio cases (Obergefell and Henry), one of the Kentucky cases (Bourke), and the Tennessee case (Tanco). Our answer to the first question goes a long way toward answering this one. If it is constitutional for a State to define marriage as a relationship between a man and a woman, it is also constitutional for the State to stand by that definition with respect to couples married in other States or countries.

The Constitution in general does not delineate when a State must apply its own laws and when it must apply the laws of another State. Neither any federal statute nor federal common law fills the gap. Throughout our history, each State has decided for itself how to resolve clashes between its laws and laws of other sovereigns — giving rise to the field of conflict of laws. The States enjoy wide latitude in fashioning choice-of-law rules. Sun Oil Co. v. Wortman, 486 U.S. 717, 727-29, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988); Allstate Ins. Co. v. Hague, 449 U.S. 302, 307-08, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981).

The plaintiffs in these cases do not claim that refusal to recognize out-of-state gay and lesbian marriages violates the Full Faith and Credit Clause, the principal constitutional limit on state choice-of-law rules. Wisely so. The Clause “does not require a State to apply another State’s law in violation of its own legitimate public policy.” Nevada v. Hall, 440 U.S. 410, 422, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979). If defining marriage as an opposite-sex relationship amounts to a legitimate public policy — and we have just explained that it does — the Full Faith and Credit Clause does not prevent a State from applying that policy to couples who move from one State to another.

The plaintiffs instead argue that failure to recognize gay marriages celebrated in other States violates the Due Process and Equal Protection Clauses. But we do not think that the invocation of these different clauses justifies a different result. As shown, compliance with the Due Process and Equal Protection Clauses in this setting requires only a rational relationship between the legislation and a legitimate public purpose. And a State does not behave irrationally by insisting upon its own definition of marriage rather than deferring to the definition adopted by another State. Preservation of a State’s authority to recognize, or to opt not to recognize, an out-of-state marriage preserves a State’s sovereign interest in deciding for itself how to define the marital relationship. It also discourages evasion of the State’s marriage laws by allowing individuals to go to another State, marry there, then return home. Were it irrational for a State to adhere to its own policy, what would be the point of the Supreme Court’s repeated holdings that the Full Faith and Credit Clause “does not require a State to apply another State’s law in violation of its own public policy”? Id.

- Far from undermining these points, Windsor reinforces them. The case observes that “[t]he definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the protection of offspring, property interests, and the enforcement of marital responsibilities.” 133 S.Ct. at 2691 (internal quotation marks omitted). How could it be irrational for a State to decide that the foundation of its domestic-relations law will be its definition of marriage, not somebody else’s? Windsor adds that “[e]ach state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders.” Id. How could it be irrational for a State to apply its definition of marriage to a couple in whose marital status the State as a sovereign has a rightful and legitimate concern?

Nor does the policy of nonrecognition trigger Windsors (or Romer’s) principle that unprecedented exercises of power call for judicial skepticism. States have always decided for themselves when to yield to laws of other States. Exercising this power, States often have refused to enforce all sorts of out-of-state rules on the grounds that they contradict important local policies. See Restatement (First) of Conflict of Laws § 612; Restatement (Second) of Conflict of Laws § 90. Even more telling, States in many instances have refused to recognize marriages performed in other States on the grounds that these marriages depart from cardinal principles of the State’s domestic-relations laws. See Restatement (First) of Conflict of Laws § 134; Restatement (Second) of Conflict of Laws § 283. The laws challenged here involve routine rather than anomalous uses of state power.

What of the reality that Ohio recognizes some heterosexual marriages solemnized in other States even if those marriages could not be performed in Ohio? See, e.g., Mazzolini v. Mazzolini, 168 Ohio St. 357, 155 N.E.2d 206, 208 (1958). The only reason Ohio could have for banning recognition of same-sex marriages performed elsewhere and not prohibiting heterosexual marriages performed elsewhere, the Ohio plaintiffs claim, is animus or “discrimination[] of an unusual character.” Obergefell Appellees’ Br. at 18 (quoting Windsor, 133 S.Ct. at 2692).

But, in making this argument, the plaintiffs misapprehend Ohio law, wrongly assuming that Ohio would recognize as valid any heterosexual marriage that was valid in the State that sanctioned it. That is not the case. Ohio law recognizes some out-of-state marriages that could not be performed in Ohio, but not all such marriages. See, e.g., Mazzolini, 155 N.E.2d at 208 (marriage of first cousins); Hardin v. Davis, 16 Ohio Supp. 19, 20 (OhioCt.Com.Pl.1945) (marriage by proxy). In Mazzolini, the most relevant precedent, the Ohio Supreme Court stated that a number of heterosexual marriages—ones that were “incestuous, polygamous, shocking to good morals, unalterably opposed to a well defined public policy, or prohibited”—would not be recognized in the State, even if they were valid in the jurisdiction that performed them. 155 N.E.2d at 208-09 (noting that first-cousin marriages fell outside this rule because they were “not made void by explicit provision” and “not incestuous”). Ohio law declares same-sex marriage contrary to the State’s public policy, placing those marriages within the longstanding exception to Ohio’s recognition rule. See Ohio Rev.Code § 3101.01(C).

IV.

That leaves one more claim, premised on the constitutional right to travel. In the Tennessee case (Tanco) and one of the Ohio cases {Henry), the claimants maintain that a State’s refusal to recognize out-of-state same-sex marriages illegitimately burdens the right to travel—in the one case by penalizing couples who move into .the State by refusing to recognize their marriages, in the other by preventing their child from obtaining a passport because the State refused to provide a birth certificate that included the names of both parents. •

The United States Constitution does ■ not mention a right to travel by name. “Yet the constitutional right to travel from one State to another is firmly embedded in our jurisprudence.” Saenz v. Roe, 526 U.S. 489, 498, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999) (internal quotation marks omitted). It provides three guarantees: (1) “the right of a citizen of one State to enter and to leave another State”; (2) “the right to be treated as a welcome visitor rather than an unfriendly alien” when visiting a second State; and (3) the right of new permanent residents “to be treated like other citizens of that State.” Id. at 500, 119 S.Ct. 1518.

Tennessee’s nonrecognition law does not violate these prohibitions. It does not ban, or for that matter regulate, movement into or out of the State other than in the respect all regulations create incentives or disincentives to live in one place or another. Most critically, the law does not punish out-of-state new residents in relation to its own born and bred. Nonresidents are “treated” just “like -other citizens of that State,” id., because the State has not expanded the definition of marriage to include gay couples in all settings, whether the individuals just arrived in Tennessee or descend from Andrew Jackson.

The same is true for the Ohio law. No regulation of movement or differential treatment between the newly resident and the longstanding resident occurs. All Ohioans must follow the State’s definition of marriage. With'respect to the need to obtain an Ohio birth certificate before obtaining a passport, they can get one. The certificate just will not include both names of the couple. The “just” of course goes to the heart of the matter. In that respect, however, it is due process and equal protection, not the right to travel, that govern the issue.

This case ultimately presents two ways to think about change. One is whether the Supreme Court will constitutionalize a new definition of marriage to meet new policy views about the issue. The other is whether the Court will begin to undertake a different form of change—change in the way we as a country optimize the handling of efforts to address requests for new civil liberties.

If the Court takes the first approach, it may resolve the issue for good and give the plaintiffs and many others relief. But we will never know what might have been. If the Court takes the second approach, is it not possible that the traditional arbiters of change — the people — will meet today’s challenge admirably and settle the issue in a productive way? In just eleven years, nineteen States and a conspicuous District, accounting for nearly forty-five percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universally followed going back to the earliest days of human history. That is a difficult timeline to criticize as unworthy of further debate and voting. When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

For these reasons, we reverse.