Justice Sotomayor on "us giving gays rights to marry..."

One of the most remarkable assertions in the oral arguments over whether the Fourteenth Amendment requires "a state to license a marriage between two people of the same sex" emerged in Justice Sotomayor's interjection at the beginning of respondents' argument on Question 1:

MR. BURSCH: Thank you, Mr. Chief Justice, and may it please the Court:

Respondents are not saying we're not ready yet. Respondents are really echoing the questions that --­­ that Justice Breyer was asking.

This case isn't about how to define marriage. It's about who gets to decide that question. Is it the people acting through the democratic process, or is it the Federal courts? And we're asking you to affirm every individual's fundamental liberty interest in deciding the meaning of marriage. And I think this whole case really turns on the questions that Justice Scalia asked.  

JUSTICE SOTOMAYOR: I'm sorry. Nobody is taking that away from anybody. Every single individual in this society chooses, if they can, their sexual orientation or who to marry or not marry. I suspect even with us giving gays rights to marry that there's some gay people who will choose not to. Just as there's some heterosexual couples who choose not to marry. So we're not taking anybody's liberty away. 

Justice Sotomayor's interjection is remarkable less for its substance on the surface than for the substance embedded in the phrasing, "even with us giving gays rights to marry ...."

Who knew that constitutional rights were for the Justices of the Supreme Court to give or withhold? They, and not "we the people," are the "us" doing the "giving" in Justice Sotomayor's description of what is at issue in Obergefell v. Hodges.

Call me naïve, but this it not how constitutional law is supposed to work.