Legal commentator Kim Wehle raises an alarm:

That’s right — the right to marriage itself is not expressed in the Constitution. So if Obergefell is overruled, a state could one day pass a law dictating that politicians get to hand-pick people’s spouses. That sounds insane, I know, but marriage is no more protected under the actual text of the Constitution than abortions are. Dobbs was always about much more than abortions.

I am skeptical that Obergefell will actually be overruled, notwithstanding its nearly non-existent reasoning, but I will set that aside for now to make two points.

First: Obergefell itself does not claim to be recognizing a newly discovered right to marry. Justice Kennedy’s majority opinion noted that “the Court has long held the right to marry is protected by the Constitution. . . . [T]he Court has reiterated that the right to marry is fundamental under the Due Process Clause.” Writing in dissent, Chief Justice Roberts takes it as a given: “There is no serious dispute that, under our precedents, the Constitution protects a right to marry.”

Second: What seems insane to me is the idea that it is necessary or even useful for a Constitution to prohibit every nutty idea that could occur to someone given to indulging in extremely hypothetical scenarios. Every state in the Union managed to avoid “a law dictating that politicians get to hand-pick people’s spouses” all the way until 2015 without any help from the Supreme Court. We have to trust that the public and elected officials have some minimal level of good sense, even if we cannot always extend that confidence to law professors.