All three. Obergefell, as an example. Originalists took one side and Kagan, Breyer, and Ginsberg took the other.
The Constitution says nothing about marriage, gay or otherwise. And until 2015, marriage was defined by individual states, which were trending toward recognition of gay marriage. The Supreme Court justices who felt no Constitutional constraint to remake a fundamental societal institution, usurped the state prerogative to define marriage. Originalist justices (Scalia, Thomas, Alito, Roberts) left the issue to individual states.
No, the religious conservatives took one side, and the majority took the other.
Marriage stopped being defined by the individual states in 1967, under Loving v WestVa. Leaving aside the opinion
in Obergefell, which has some squirmy language and was written by Kennedy; the decision
is firmly rooted in Loving. Poor Scalia had to twist himself into knots to sidestep his previous full-throated endorsement of Loving while opposing Obergefell. It was embarrassing.
You're talking like Obergefell was some kind of "activist" Court intervention in something that coulda/shoulda been left to the states. Not so, there was a bona fide circuit split. SCOTUS was obliged to get involved. Your precious originalists ostentatiously dressed themselves in the fig leaf of leaving the decision to individual states; but the circuit split meant one or the other was going to apply. By opposing this decision, there were effectively voting to apply the opposite decision to all states, while pretending that they weren't. (And letting the full faith & credit issue fester.) Pretty hypocritical.
In fact the "originalist" commitment to states' rights is only context dependent. Originalists want to "leave the issues to the individual states" – UNLESS! the law in question is about gun control (Heller) or about campaign finance (I lost my cite, it's not Citizens United it's the other one). Then, no sir, the states cannot be allowed to handle the issue. So-called orginalists don't have any commitment to a states-rights principle at all; they invoke one when it suits their political or religious preferences, and not when it doesn't.
You don't have to like the difference. But don't pretend there is none.
I'm not pretending anything. I am observing that there is no "there" there. Originalism doesn't do anything. Where a legal text is clear and unambiguous, the "originalist" and every other judge reach exactly the same finding: orginalism adds nothing. Where the text is vague, originalism provides no guidance at all, and the judge applies his political affiliation and his religious creed and his prejudice. But because he knows
in his heart that he's an "Originalist", he knows that he's pure-minded and his projection imust be pre-ordained by the Framers. Basically he does what he wants to do, and pretends to himself that his decision = the framer's intent.
At least other judges know what they're doing when they lean on another theory to help fill a gap, like judicial pragmatism or Posner's "economic analysis" or Breyer's confusing concept of "active liberty", or the more prosaic incremental organic sloppiness of the common law. Or even, god forbid, "justice". They know they've left the reservation, and they know they have to be careful. They might even take time enough to check a couple different theories against each other, make sure those line up in the same direction, to help assure they're not making too bad a misstep. The "originalist" judge is so blithely convinced of his rightness that he doesn't bother with such care.
The hypocrisy is kind of stunning. And yet so many lap it up. I don't get it, at all.