That is exactly what Scalia predicted in his dissent to Lawrence when he responded to the majority’s insistence that its decision had no implications for the issue of gay marriage. “Don’t you believe it,” Scalia retorted. “If moral disapprobation of homosexual conduct is ‘no legitimate state interest’… what justifications can there possibly be for denying the benefits of marriage to homosexual couples?” He was right, and there is no reason that the logic of his argument should stop there.

Two recent items in the news reflect the continuing fallout from Obergefell v. Hodges, the case barring states from restricting marriage to the union of a man and a woman. Senator Ted Cruz is holding hearings in response to what he takes to be the “lawlessness” of the decision. And in the New York Times, law professor William Baude asks a question many have been asking in the wake of Obergefell: “Is Polygamy Next?” (Are we sliding down a slippery slope?)

So the questions are: (1) Is the majority decision, as Justice Scalia charges in his dissent, “lacking even a thin veneer of law” and full instead of “the mystical aphorisms of the fortune cookie”? (2) Or is Scalia’s dissent, as his critics charge, “unhinged,” “bitchy,” “juvenile” and “hysterical” (all words that have been applied to it)? And (3), is it inevitable that the majority’s arguments will lead to the legalization of plural marriage? I would answer “yes” to (1) and (3),” no” to (2).

First, a little background. Obergefell is the culmination of a series of opinions that began with the dissents in Bowers v. Hardwick (1986), a case that upheld Georgia’s anti-sodomy law. Seventeen years later in Lawrence v. Texas (2003), the dissenters became the majority and the majority became the dissenters, a reversal confirmed and strengthened in United States v. Windsor (2013) and now again in Obergefell. The sequence marks the passage from a view of law in which the legal status of an act (like homosexual sex) followed from an entrenched moral code to a view in which moral disapproval of a practice is not “a sufficient reason for upholding a law prohibiting it” (Justice Stevens, dissenting in Bowers). The passage was pretty much complete when Justice Kennedy declared in Lawrence that “profound and deep convictions accepted as ethical and moral principles do not answer the question before us”; do not, that is, answer a legal question. Law and morality, while obviously joined at some general level, are in practice two different things.

Scalia’s complaint against the Obergefell majority — although he doesn’t put it this way — is that once again a moral perspective has been allowed to displace the process of patient legal analysis. This time the morality is different; not the stern old testament morality that ruled in Bowers and was overruled in Lawrence, but the morality of love, identity, intimacy, spirituality, aspiration, dignity, self-expression and respect — all words Kennedy uses and words that bear the mark of the vaguely new age sensibility Scalia derides when he refers to the “opinion’s showy profundities” that are, in fact, “profoundly incoherent.” What exactly, he asks, is the legal import of intimacy and spirituality, and “who ever thought” that they were “freedoms” of a kind that merited constitutional protection? How can this claim be traced by a legal analysis to clauses in the Constitution? How can the court justify the creation of “‘liberties’ that the Constitution and its Amendments neglect to mention?”

There may be answers to these questions, but, Scalia insists, the court doesn’t really answer them. It instead proclaims the virtues of the moral perspective it “really likes” while heaping scorn on the moral perspective it “really dislikes.”

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