On Friday, June 26th, the Supreme Court of the United States announced its ruling in Obergefell v. Hodges, holding that the Fourteenth Amendment of the United States Constitution guarantees the recognition and provision of same-sex marriage. It requires each of the 50 states in the US to issue marriage licenses to same-sex couples seeking them, and to recognize legitimate same-sex marriages performed in other jurisdictions.
Justice Kennedy, writing for the majority, said in his decision:
The Fourteenth Amendment requires a State to license a marriage between two people of the same sex….
The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs…. Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
The decision is a landmark in the development of the rights and liberties of gay and lesbian people in the US, and is not without its controversy, of course. Many questions have arisen about the reasoning of the majority and that of the dissenting justices, as well as the significance of the decision. To get clearer on some of these issues, I asked several philosophers to contribute some brief remarks on the ruling. They are: Elizabeth Brake (Arizona State), Cheshire Calhoun (Arizona State), Clare Chambers (Cambridge), John Corvino (Wayne State), Brook Sadler (South Florida), Edward Stein (Cardozo), and Kevin Vallier (Bowling Green). I am grateful to them for sharing their thoughts and doing so on such short notice. I’d also like to thank Esa Diaz-Leon for suggesting a group post on this topic.
The idea of the “Philosophers On” series (this is the third one at Daily Nous; the first was on Rachel Dolezal, the second was on the Charleston Massacre), is to prompt further discussion among philosophers, and also to explore the ways in which philosophers can add, with their characteristically insightful and careful modes of thinking, to the public conversation about current events. Others are, of course, welcome to join the conversation. Additionally, if you come across particularly valuable relevant philosophical commentary elsewhere, please provide a link in the comments.
The Supreme Court’s decision deserves celebration. If there is to be a state-recognized and state-regulated institution of marriage, then equal treatment demands that it be extended to gays, lesbians, and bisexuals. In a context of marriage inequality, this decision is an important statement of legal equality. However, should there be a government-backed institution of marriage in the first place?
A number of philosophers have argued that the state should get out of the marriage business, leaving the celebration of weddings to churches and Vegas chapels, and allowing relationship partners to use the tools available in private contract to create enforceable property agreements. Some have argued that for the state to support – much less promote, as the U.S. does – an essentially religious or ethical institution is simply illiberal, just as supporting state-run baptisms or bar mitzvahs would be. Others have argued that the institution bears traces of its patriarchal heritage (in which women were legally subordinate within marriage) and that some provisions of marriage law, in some jurisdictions, facilitate domestic violence. Still others argue that marriage law wrongly imposes a single template for ‘the good life’ when in fact people seek intimacy in many forms. The state’s preference for one form of relationship fails to treat citizens in different relationship forms—and with differing ideals of love relationships—evenhandedly.
In my view, the state should recognize marriage relationships, because such recognition serves important functions. Most importantly, it protects and supports certain relationships in which people care for one another. Such caring relationships are widespread constituents of people’s views of the good life, and they allow citizens to further their life plans in many ways. But not everyone wants, or finds, or idealizes dyadic, sexual, romantic, monogamous love relationships. People seek and find care and intimacy in many forms. Two single female friends might cohabit, raising children together, or elderly friends might cohabit, providing mutual care. Some adults freely choose to enter polyamorous relationships, in which more than two parties share their sexual and emotional lives. Close, committed friends who share their lives, or small polyamorous groups, can provide the care that some marriages do.
Just as equal treatment demands that same-sex marriage be recognized, it requires that these other committed relationships be eligible for the support and protection which legal marriage provides. That is, if one of the main rationales for marriage law is the protection of devoted love and family life, love and family should be recognized in all their variety. This is not to say that friendships and polyamory should be styled as marriage: many would not want to be viewed as married, and it is important to keep alternate forms of civil recognition for those who oppose marriage on principle. However, such relationships deserve equivalent protection to marriages on grounds of equal treatment. On my view, recognizing and legally protecting the array of relationships in which people live would go a long way towards answering the arguments against legal marriage listed above.
Three caveats should be mentioned. First, while we are celebrating good marriages, we should recall that marriages can go bad – lethally bad – and that it is important to protect exit options. Second, the distribution of health benefits through marriage continues to be an injustice. Third, gays, lesbians, bisexuals, and polyamorists have important interests not covered by marriage law – such as protection against discrimination in employment. Marriage equality is an important step forward, but it is only one step towards full equality.
Having just finished reading Justice Kennedy’s majority opinion in Obergefell v. Hodges, and the dissenting opinions by Justices Roberts, Scalia, Thomas, and Alito, I am struck by the unclarity about what marriage is, why it is a fundamental right, and why it is important not to restrict that right to opposite-sex couples. I don’t think that unclarity is local to the Supreme Court; it is endemic to judicial, legislative, and broader cultural reflections on the nature and importance of marriage. Here are four options for why marriage and the right to it is of fundamental importance.
One might think that marriage has some “transcendent” value and meaning. Indeed, Justice Kennedy refers more than once to the transcendent nature of marriage. He notes, for example, that “same-sex couples, too, may aspire to the transcendent purpose of marriage and seek fulfillment in its highest meaning.” But where does that transcendent meaning come from? At one point in time, one might have claimed that marriage is an institution designed by God and its transcendent value thus consists in its sacredness (Kennedy also mentions the sacredness of marriage). To do so now in a Supreme Court decision quickly raises the concern that Scalia articulates about the limited “we,” namely the nine Supreme Court justices, enforcing this evaluative conception of marriage.
Alternatively, one might think that marriage is fundamental because since ancient times and across cultures societies have recognized some kind of marital arrangement. As Kennedy observes, “the right to marry is fundamental as a matter of history and tradition.” But as many have noted, there have been enormous variations in the socio-historical forms marriage has taken, including patriarchal polygamy and same-sex marriage. The socio-historical prevalence of some form of marriage is not going to be useful for anyone to draw on. And in particular, it doesn’t narrow down the fundamental form of marriage to the one singled out by Kennedy—two-person marriage. Nor is it obvious why marital arrangements in other time periods, countries, and cultures, would be relevant to US legal and judicial thinking.
Alternatively, one might think that marriage “is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” As Alito observes, the emphasis in this part of the majority opinion appears to be on the happiness of married individuals—their finding emotional fulfillment, support in times of need, stability in their relationship. As Scalia observes the emphasis is also on their finding other freedoms, such as expression, intimacy, and spirituality. But going this route requires a romantic inflation of what actual marriages deliver, so that an idealized version of marriage replaces the empirical reality of actual marriages, as a ground for claiming that marriage has some fundamental value in human lives. It also requires an implicit deflation of all other forms of human bonding that might supply these same things (and as Scalia notes, if freedom of intimacy is what you want, there are better options).
Finally, one might think that marriage is fundamental simply because we have made it so, and we have made it so for quite a long time, both in our cultural practices and in the ever growing range of rights, benefits, and responsibilities attached to marriage. On this point, Kennedy aptly observes that “the States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.” And when we get down to what the petitioners wanted, it is not access to transcendent meaning, inclusion in a persistent socio-historical practice, or an emotional fulfillment and support, intimacy, spirituality, and so on that they didn’t already have in their relationships. What they wanted were basic state-granted entitlements such as being listed on a partner’s death certificate, being able to jointly adopt, and being able to set up residence in Tennessee without losing their lawful marriage.
There is another sense in which we have made marriage fundamental. We have constructed and deeply bought into an ideology of marriage as a pre-political institution, the sort of human arrangement “without which there would be neither civilization nor progress” (here Justice Kennedy was quoting the 1888Maynard v. Hill decision). To the extent that we remain in the grip of that ideological construction of marriage as a pre-political institution that provides the indispensable keystone in the arch of civilization, we are also caught in the grip of the idea that only those social kinds who are fit for marriage are the truly essential citizens, since only they make possible the existence and progress of civilization. As I have argued elsewhere, this means that reserving marriage for heterosexuals amounts to reserving for them a unique citizenship status—that of being essential citizens.
Sometimes Supreme Court decisions shed clarifying light. Both Loving v. Virginia and United States v. Windsor did this for our marriage law. Both narrowed in on what was fundamentally wrong about, respectively, laws barring and punishing interracial marriage and the federal Defense of Marriage Act—they were motivated by animus toward a particular social group and had the purpose entrenching inequality. Unfortunately, while the majority opinion in Obergefell v. Hodges has a great deal to say about the demeaning of gays and lesbians, it also swims too much in the muddy waters of our confused thinking about why marriage matters.
If marriage is recognised by the state then justice requires that it be extended to same-sex couples. Anyone who cares about justice should celebrate the end of the ban on same-sex marriage in the USA, and I most certainly do.
But why should marriage be recognised by the state? The values of equality and liberty that lead towards the need to recognise same-sex marriage actually push further: towards the abolition of marriage as a state-recognised institution. Marriage should not be illegal: people should be free to participate in religious or secular marriage ceremonies. But those ceremonies and unions should have no special legal standing.
Ending the state recognition of marriage would mean ending a variety of inequalities connected with the institution. Marriage is historically and traditionally a patriarchal institution, connected with the legal subjection of women. It is still in many places a heterosexist institution. Legal changes dent but do not necessarily destroy those symbolic meanings. And even reformed, equal marriage still entrenches inequality: between the married and the unmarried, and between the children of married and unmarried parents. Unmarried people include those who are single, those who are partnered but do not wish to marry, those who are non-monogamous, those who are divorced, those who are widowed. Why should these people, and their children, be denied the benefits that come with marriage? Those benefits vary from state to state, but may include health insurance, next-of-kinship rights, immigration rights, visitation rights, inheritance or other tax relief, and custody of children. Why should only married people be granted these rights?
The state recognition of marriage also violates liberty, since by lending status and significance to marriage the state endorses a particular set of values involved in that ideal. Those values are not neutral values like stability or commitment or care or family or love, since unmarried people can and do instantiate those values in their lives and relationships. Instead the values unique to marriage are substantive and value-laden, subject to reasonable disagreement.
I don’t have the space here to set out how personal relationships would be regulated so as to secure justice in the marriage-free state, so a thought experiment will have to suffice. Ask yourself: what would be the ideally-just regulations to deal with unmarried people in the current, marriage-based regime? What rights and duties should apply to unmarried cohabitants, property-holders, parents, carers, dependents, people who wish to designate each other next-of-kin? Would rights and duties be tied to formal agreement, to length of relationship, to function, to finances? Whatever your answer, why not apply your ideal regulations to everyone, regardless of marital status? Why not end the state recognition of marriage?
Like many, I’m still letting Obergefell sink in—not just the decision itself, but also the dramatic changes it signals. Had you told me 25 years ago, when I started graduate school, that the White House would someday be lit up in rainbow colors to celebrate the Supreme Court’s granting same-sex couples the right to marry in all 50 states, I would have retorted “Not in my lifetime.” Richard Mohr’s Gays/Justice, published in 1988, was then revolutionary. In 1992, when I first presented the lecture “What’s Morally Wrong with Homosexuality?” (which later became the article “Why Shouldn’t Tommy and Jim Have Sex?” and more recently a book), 57% of Americans denied that homosexuality was an “acceptable alternative lifestyle.” Gallup didn’t poll on marriage until 1996: 27% in favor, 68% opposed. We’ve come a long way in a short time—thanks in part to pioneers like Mohr, as well as other thoughtful philosophers who explored these issues in their publications and their classrooms.
Two things strike me about the opinions on first read: one personal, and one philosophical. Personally, I’m moved by the absence of anti-gay disgust in the dissents—a marked contrast with Bowers, which was still fresh back when I started grad school. Roberts gives same-sex couples and their allies explicit permission to celebrate the result, even as he disagrees with it on strict-constructionist grounds; Scalia announces that “The substance of today’s decree is not of immense personal importance to me.” One could not imagine such assurances from Byron White or Warren Burger.
Philosophically, I’m struck by how important definitional questions are to the disagreement between the majority and the dissenters. Does prohibiting same-sex marriage interfere with gay persons’ liberty, as the majority argues, or does it simply decline to grant them certain privileges and benefits? If the latter, does the prohibition treat them unequally under the law, by granting marriage to some couples but not others without sufficient reason for the distinction? Well, that depends on what marriage is. If marriage by definition requires (at least) one man and one woman, then “same-sex marriage” involves a category mistake—and one cannot violate the 14th Amendment simply by declining to participate in a category mistake. But this argument, which underlies all four dissents, assumes that the legal privileges and benefits attached to marriage must track this “natural,” pre-legal, essentially heterosexual institution. And that assumption, in turn, raises difficult questions in social and political philosophy, not to mention the metaphysics of marriage.
In granting same-sex couples the right to marry, the Supreme Court’s ruling in Obergefell v. Hodges has achieved a laudable end: justice for gays and lesbians who have wrongly been excluded from access to important legal rights and benefits open to heterosexual couples. This is a result worth celebrating. However, some of the Court’s reasoning and rhetoric in support of this decision is philosophically and politically dubious.
The Obergefell ruling grants gay and lesbian couples access to the full and extensive panoply of legal rights and responsibilities (and economic and social benefits) that accompany marital status. But should marital status be the mechanism through which such rights and benefits are conferred? Is there a legitimate State interest in promoting marriages, which would justify excluding unmarried persons from access to those rights and benefits? The Court assumes, with meager argument, that the State does have a legitimate interest in promoting marriage. Citing Confucius and Cicero, the Court suggests that marriage is fundamental to civil society. The Court’s clearest message regarding the importance of marriage to the State is simply that marriage has endured as an institution for millennia. But the simple longevity of an institution or social practice does not offer much to recommend it: Slavery, sex trafficking, and prostitution also have an ancient pedigree and have persisted for centuries.
By upholding the central importance of marriage to society, the Court entrenches an institution of dubious legal and political value. Focusing on the value of marriage diverts our attention from the importance of creating just laws and social supports for all citizens, regardless of marital status. As long as marriage secures access to healthcare, social security, and tax benefits (to name a few), marriage will be socially and economically compulsory for many, especially for women.
Without equal pay, adequate and affordable childcare and early-childhood education, or guaranteed healthcare for women or children, American women enter (and exit) marriage on unequal economic footing with their husbands. As long as women’s material security is tied to marriage, women are not truly free to choose marriage. Marriage remains a linchpin in patriarchy, sustaining conditions in which (heterosexual) women are materially dependent upon men. Instead of insisting upon citizens’ right to marry, we should create conditions in which citizens have the freedom not to marryand in which the welfare of children is not contingent upon the marital status of their parents.
The majority opinion in Obergefell states: “Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples” (p. 15). This is unsubstantiated rhetoric. It promotes the superiority of marriage and the nuclear family to alternative modes of childrearing (whether by single parents or extended families); such rhetoric itself produces the stigma it describes and obscures the central importance of economic and social conditions to the welfare of children.
I have suggested that marriage has dubious legal and political value today. It diverts our attention from the need to establish just social conditions for all, regardless of marital status; it sustains patriarchy; and it is too-easily assimilated to troubling rhetoric that enshrines the nuclear family. But, to deny that civil marriage is of fundamental importance to civil society says nothing about its value as a part of religious practices. It is also consistent with recognizing that marriage is a morally important relationship and one that may provide significant psychological and personal benefits. But even here, the Court over-reaches with its rhetoric; the unmarried are not, as it suggests, “condemned to live in loneliness” (p. 28). As many people can attest, regardless of their sexual orientation, civil marriage is not the only relationship that alleviates loneliness. Nor is it strictly “essential to our most profound hopes and aspirations” (p. 3). Although marriage may be of profound value for some, it is not essential to human life, and for much of its history, it has functioned as a profound limitation in the lives of women. A more just political order will separate access to basic rights from erotic affiliation and secure the welfare of all citizens regardless of their familial arrangements.
The Surprising Revival of the Definitional Argument Against Same-Sex Marriage
While the Supreme Court decision in Obergefell represents a dramatic development for LGBTQ rights in the United States, this landmark case was not unanimous, in contrast to Loving v. Virginia, the 1967 decision that ruled laws prohibiting interracial marriage were unconstitutional. It is worth considering why Obergefell was a five-to-four decision. While both the majority and dissent agree that the institution of marriage has changed dramatically since this country’s founding, only the dissenters see the different-sex aspect of marriage as the unchangeable essence of marriage.
In 1973, in one of the first marriage-equality cases in the United States, the Supreme Court of Kentucky said that the two female plaintiffs who filed suit against the state seeking to marry each other were:
prevented from marrying, not by the statutes of Kentucky. . . but . . . by their own incapacity of entering into a marriage as that term is defined. . . . [T]he issuance of a marriage license [is not warranted] because what they propose is not a marriage. [Jones v. Hallahan, 501 S.W.2d 588, 588-90 (Ky. 1973)]
Like the judges who heard the gay marriage cases of the 1970s, the Obergefell dissenters draw on dictionaries to show that “the core structure of marriage [is] the union between a man and a woman.” This definition-based argument is incredibly thin—it fails to explain why the gender difference of the parties is a necessary feature of marriage. One simply can’t get this kind of legal/ethical justification from a dictionary. Justice Kennedy and the majority, along with most judges hearing marriage equality cases in the twenty-first century, have wisely rejected this argument and embraced a more dynamic view of both marriage and its nature in both law and society. The dissent’s embrace of the definitional argument is at the core of what is wrong with its approach to same-sex marriage.
The United States has reached a new legal settlement: gays and lesbians may legally marry, and same-sex married couples are entitled to all the rights and benefits of heterosexual married couples. It is hard to deny that this is step towards justice. But for the new legal regime to be stable and enduring, we are now faced with the difficult challenge of determining how to treat persons of faith who reject same-sex marriage and homosexual sex as immoral and sinful.
At present, many people of faith merely ask to be able to live a life in accordance with their moral and religious beliefs (reflect on the measured response of the Union of Orthodox Jewish Congregations of America). Few would deny them that liberty in principle. But to what extent should people of faith be allowed to shape their institutions around their beliefs? Clearly the state should not attempt to alter church doctrine or ordination practices, nor should the state compel clergy to perform same-sex weddings against their will. But how much further should religious liberty reach?
Consider: Bob Jones University did not admit African-American students until 1971, and continued to discourage interracial dating for many years thereafter. In response, the IRS removed the university’s tax exemption in 1976 (extending retroactively to 1970). Their objections (based on the religion clauses in the first amendment) made their way up to the Supreme Court in 1982 and, in 1983, Bob Jones lost. They were not deterred. The university continued prohibiting interracial dating, paying a million dollars in back taxes. Bob Jones didn’t officially drop the rule until George W. Bush spoke there in 2000, which led to major public criticism.
Many readers will think that the government has the authority, even the duty, to deny Bob Jones tax exempt status, given their constant, aggressive attempts to diminish the dignity of African-Americans. In this case, I agree.
But here’s the tricky philosophical question: in the name of moral symmetry between discrimination based on race and sexual orientation, should the IRS pursue similar strategies with religious institutions that prohibit same-sex dating, teach that homosexual sex is immoral, and regard same-sex marriage as a theological absurdity? To put it starkly: should the IRS strip public funding and tax exempt status from every non-compliant theologically orthodox school and university in the United States (not to mention thousands of non-educational organizations)? If you think this goes too far, what’s your reason?
I think the federal government should treat the two cases differently for both principled and pragmatic reasons. If you think the same treatment is appropriate, I invite you to imagine hundreds of thousands of sincere, informed Muslims, Jews and Christians engaged in civil disobedience, quickly converting their (potentially alterable) opposition to same-sex marriage into the mark of a martyr. A free, egalitarian and pluralistic society can find a better solution. But what is the most philosophically defensible and pragmatically effective alternative to the Bob Jones treatment?
Thanks again to the contributors to this post. As a bonus, here’s John Corvino’s short video “The Definition of Marriage”:
(top image: photo of the Stonewall Riots, 1969, modified)