Loving v. Virginia was 9–0. Obergefell v. Hodges was 5–4.

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Judge Posner writes of the gay marriage case: “It is very difficult to distinguish the case from Loving v. Virginia, which in 1967 invalidated state laws forbidding miscegenation.” He gets to the heart of the similarity between the two when he notes that in neither case was there any harm done to anyone else from the forbidden marriages.

But there is one major respect in which Loving differs greatly from Obergefell v. Hodges: Loving was 9–0. Obergefell was 5–4.

In Loving, no one dissented. In Obergefell, the four dissenting justices wrote four separate dissenting opinions. The judicial opponents of gay marriage were not content to go gently into that good night.

First, there is Chief Justice John Roberts, who would want to correct what I just wrote by arguing that he is not an “opponent of gay marriage”: He simply wants the issue resolved by the people or their elected representatives in the states. In the Slate Amicus podcast you and I recorded on Friday, Dahlia, I noted that the chief seemed to go out of his way to be respectful of LGBT advocates, noting, for example, that they “make strong arguments rooted in social policy and considerations of fairness.” You (and others who were actually in the courtroom Friday) tell me that his spoken summary of his dissent sounded more hostile and dismissive than the written opinion.

In the end, the chief justice’s dissent fails to offer any meaningful response to the simple argument that governmental restrictions on freedom must be justified by a reason—some public harm averted. Roberts doesn’t really provide any list of harms averted. And as Posner points out, what is left when there is no real harm is the possibility of hostility to the rights of others, an impermissible basis for a governmental rule.