Obergefell v. Hodges: two sides of the same debate

And so, now Obergefell v. Hodges has come down. Not a shocking result, honestly, though I did think the vote would be 7-2 or 6-3, and not another razor thin 5-4 margin. I wonder if it’s possible that Chief Justice Roberts was hoping for a more conciliatory and moderate draft from Justice Kennedy, one he might be able to join, and was taken aback by how sweeping Kennedy’s decision was. But it’s done, and is unlikely to be undone. SCOTUSblog has lots of outstanding expert legal analysis on the decision; time for me to weigh in with my decidedly inexpert parsing of it. (As always, I am just a playwright with wifi; I do not claim any legal or scholarly credentials).

What strikes me, reading both Kennedy’s decision and the dissents from Roberts and from Scalia, Alito and Thomas, is the degree to which they’re writing at cross purposes. They’re not even addressing the same issues. That’s been true throughout this debate. One side insists that the central issue here is a radical redefinition of marriage, that it’s about how marriage even gets defined and who should define it, even, on the margins, calling this particular redefinition a potentially catastrophic and certainly radical social experiment. What that leads to, frankly, is federalism. Conservatives are generally fonder of federalism than liberals are, and that’s the main issue that Roberts addresses; whether unelected judges should define something as fundamental to society as marriage, or whether The People should define it, through their elected officials, state by state.

That’s a reasonable position. But if, in fact, citizens of the United States have a fundamental right to marry, then to deny that right to members of an unpopular minority is a wrong that needs to be redressed. The Fourteenth Amendment requires that all citizens receive equal protection under the law. If some citizens of the United States are denied legal equality by the states in which they happen to reside, then that becomes a matter for judicial intervention. Citizens are being harmed. Citizens are being discriminated against. And it’s not just appropriate for courts to step in; it’s necessary. That’s their function.

Put another way, does Kennedy’s decision in Obergefell bully the states? Is this a situation where courts unfairly tell states what they can and can’t do? Or is this a situation where states are bullying gay people, and the court is telling them to cut it out?

So: do citizens have a right to marry? The Constitution never mentions marriage; the word ‘marriage’ never appears in the Bill of Rights. So how can Justice Kennedy insist that there is a constitutional right to marry? Here’s Justice Roberts final paragraph:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

So let’s talk about rights, and let’s talk about history. What is a ‘right worthy of constitutional protection?’ And what I write next may seem simple-minded and foolish. It may be presumptuous of me to say that my status as a layman, my lack of legal credentials, could also give me a different, and dare I say, needed perspective. But here goes. Rights are fundamental areas into which government cannot intrude. And rights are basically what most people believe to be rights. You believe that something is a right because, come on, of course that’s a right. Why wouldn’t it be?

It’s certainly true that the Framers never mentioned marriage. But then, their understanding of marriage was very different from ours. The primary legal requirement in 18th century America involved the posting of the banns, which took place three weeks before the wedding. (And I suspect that was mostly for well-off families). You could register a marriage with the county clerk, but this was rarely done. Divorce was difficult to obtain. Marriage itself was a subset of property law.

More to the point, though, the Bill of Rights did not include a right to marry, because nobody thought to include one. I mean, fathers might forbid their daughters marrying some wastrel n’er-do-well (leading, at least in novels, to spectacular elopements), but the idea that a government entity would forbid some marriage or another was just nonsense. It just wasn’t the kind of thing that ever happened.

But soldiers were quartered in people’s houses without the owner’s consent. The British had done that, and it was bitterly resented. So the Third Amendment is in the Bill of Rights, though today it’s mostly just considered a charming anachronism.  And states and communities did insist that men form militias, and drill periodically with their muskets, and so we have the Second Amendment, though its meaning has morphed weirdly into a right to buy a hunting rifle at Cabela’s.

Most particularly, the Bill of Rights does not include a right to vote. That’s because the Framers wanted to limit the voting franchise. But today, we believe that all adult citizens have the right to vote. And getting those rights into the Constitution required further amendments; the Fifteenth and Nineteenth.

Not long ago, a friend of mine proposed on Facebook this: that there existed a fundamental right for all children to be reared by their biological parents. Would I support calling that a right? I’d never thought of it before; never considered it. So I thought about it. And after some somber reflection, I decided that that idea was crazy. I couldn’t have disagreed more. The simple reality is that some biological parents are terribly neglectful and abusive, enough so that they’ve forfeited their parental rights. And other people just can’t deal with kids, and give them up for adoption, and that’s terrific, that’s a great thing, adoption is a wonderful human institution giving kids in tough situations a chance. So there you are. Someone proposed that something should be considered a right. I disagreed, and I think most folks would disagree. That’s a decidedly minority position. So it’s not a right.

So, okay, what about marriage? Do citizens, consenting adults who have decided to commit their lives together, have a basic, fundamental, human right to do that, to marry?  Should we consider that right as basic and fundamental as the right to free speech, or freedom of the press, or the freedom to worship freely? The Obergefell decision lists lots of case law precedents to support the majority’s claim that marriage is a right, but let’s instead just be, you know, people. What do we think? Don’t worry about legalities; is the right to marry a fundamental human right?

Man, I can’t imagine how anyone could say that it isn’t. I mean, not everyone gets to marry, and not all marriages work. But we think divorce is a tragedy, and feel compassion for our unmarried friends, precisely because we think marriage is so important.  Think about it. Is anything more basic than our society’s commitment to marriage? Is there anything more intrinsically, fundamentally important than marriage? Is there a choice we make, ever, that’s more important?

Of course, sometimes it doesn’t work out, and there’s terrible heartbreak and sorrow and pain involved. But that fact only shows how important it is, how essential we regard it as being. For two people to say ‘I choose you, I commit my life to you, I have decided that you are the one person on earth I want to be with for the rest of my life’ goes right to the heart of what it means to be a human being. And in our culture, in American culture in the 21st century, the main way people make that kind of public declaration of that commitment is through the institution we call marriage. Of course, some people choose not to marry; that’s also their right. But it basically comes down to this: are gay people fully citizens of the United States? And if not, why not? That’s the question that Justice Kennedy answered so eloquently:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

This is not to say that the concerns of the other side aren’t worthy of our consideration. But I would suggest to you that marriage is a right, and that the more you think about it, the more you’ll agree that it has to be. And that’s why I say, after careful reflection, that Obergefell was rightly decided.

4 thoughts on “Obergefell v. Hodges: two sides of the same debate

  1. Missy

    I agree with you marriage is a right…Kennedy’s decision was spot on. I too was a little surprised that it was a 5-4 decision, I expected it to be a 6-3, Justice Roberts is unpredictable isn’t he…I didn’t used to think so but lately he has been. I feel like this is long over due and it isn’t going to harm anyone. All the talk about this decision infringing on religious liberty is just paranoia, I don’t see how it does. Nothing in this decision forces any church to do anything that they don’t want to do. I’m very happily married and when I think about my LGBT brothers and sisters not being able to be married to their chosen person it always made me sad for them…this is a good day!

  2. Cameron

    I think the question of “is marriage a human right” is more complex than you present. I agree with you that yes, it is a human right to marry. But in every statement of rights in every time and every place of human history there is a “so long as” clause. Sometimes its explicit and sometimes implied, but it’s always there. No human right is unconstrained, not that I can think of. The rights of free speech and freedom of the press? Sure, you can have that… so long as you’re not inciting violence. Or it’s wartime. Or, or, or. How about something more basic? The right to life? Sure, of course we’ve got you covered there… so long as you’re not murdering people or committing treason.

    Can you think of any unrestrained rights? Maybe I’m forgetting some. But if every right only holds under certain conditions, then what we have to determine is NOT whether marriage is a right, but whether same-sex partners fall within the parameters of acceptability to the point that the “so long as”es don’t apply. That, to me, leads directly to the equally contentious if less-frequent discussion of “what is marriage for?” Is it for love and companionship, as Kennedy suggests? Economic advantage? Child-rearing? To my mind, the only reason any government would want or need to apply its seal of approval and confer benefits to any union is if that union conferred some benefit to its country. And marriages DO confer benefits on a nation – married people make more money, are healthier, and make less trouble than those who aren’t (on average).

    Does a gay marriage confer the same benefit to the nation as a straight one? Certainly on the points listed above, gay unions appear to confer similar advantages to straight unions, according to the research we have. The one aspect that gay marriages lack on the face of it is the procreative one, which gives continuance to a society and its government. But then, there’s always adoption, so even that isn’t clear-cut. Besides, there are plenty of straight marriages that aren’t procreative for one reason or another, and we don’t take away their licenses. So that one aspect can’t be the only criteria for acceptance into the institution of marriage. There seem to be multiple, overlapping criteria in our society that make a marriage “real.” They include care and affection, long-term commitment, having sex, having kids, financial partnership, and having similar worldview. There are probably half a dozen others I’m not thinking of. If you can check enough of those boxes, then to those who know you, you’ve got a marriage. And if those who know you think you do, why should anyone who doesn’t know you object?

    Personally, I have a deep feeling that the ideal marriage is a procreative union, and on some level, gay marriage just doesn’t measure up. But I recognize that as my *feeling*, and that it’s deeply wrapped up in my religious ideals as well. What’s more, I recognize that the world we live in is not an ideal one, and hardly any of the marriages I see, including my own, reach the ideals that I hold about the institution. This is a rough life, and we just do our best. And even if I don’t ever “get” gay marriage or feel like it’s “right,” if that’s the best union those two people can make given the life that they live, then more power to them. I’d rather two gay guys take comfort, strength, and hope out of a same-sex marriage than require them to reach for an ideal they don’t and probably can’t aspire to – and it’s probably an ideal they wouldn’t aspire to anyway, so why hold them to it? I wouldn’t accept that if I were gay.

    So despite my deep ambivalence, I think I agree with you, Eric – this was the best decision that could be made for the time and place in which we exist.

  3. Kathy

    What has been missed all this time is that both sides of this issue can claim victories. Your description of marriage and commitment is quite beautiful, so are Justice Kennedy’s words, “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.”

    It is so nice to hear and see that. Ever since I was a kid in middle and high school I have been hearing from a lot of individuals and groups that marriage was “just a piece of paper”, a meaningless, outdated institution that was nothing but a trap and a waste of time. I was told living together was far more romantic than getting married. I always felt differently. I saw marriage as a good thing, definitely involving love and commitment. When this issue really became prominent, I began to hear people supporting marriage equality declaring that marriage is about love, commitment, stability, companionship and rights. It was refreshing to hear that. I had not heard that from some types of activists and pundits in a long time, if ever.

    Marriage is a stabilizing force for individuals and society. I hope a broader expansion of it brings about exactly that. Certainly the straight community has been frivolous with marriage and not appreciated it for the privilege it is. The gay community may have things to teach us about what love, commitment and responsibility looks like.

  4. Alma T. Wilson


    I too would be compelled to accept the rightness of this decision if I believed either
    that it is mostly biology that determines who is gay or lesbian, or else
    that this decision will cause no harm.

    I believe neither.

    If the chimpanzees and bonobos, with whom we share nearly 99% of our genes, are any indication, then we higher primates are just not all that sexually discriminating: monosexuality, whether exclusive heterosexuality or exclusive homosexuality, is not a part of our biological hardware.

    Where we humans differ from the other primates is that we are preeminently responsive to social control, i.e. to culture.

    In many hunter-gatherer cultures, which sex one has sex with is largely a function of where one is in one’s lifespan. In particular, young males as yet unqualified to mate are expected in the interim to indulge each other.

    In the Hellenistic world, which celebrated it, bisexual passion was considered ordinary and normal, even for Zeus himself.

    Introspection can help us glimpse this biological substrate in ourselves. Imagine that all the men and women in the world appear before you, in two distinct lines. Can you really say that everyone in the one line is more attractive to you than everyone in the other? Doesn’t that seem a bit unlikely, for any human being?

    Both kinds of monosexuality are biologically unnatural.

    Monosexuality is a cultural construct. It is not even a cultural universal, like, say, exogamy.

    Even in cultures or subcultures that take exclusive heterosexuality as a norm, the line of normalcy is drawn differently, sometimes between the two participants of one sex act.

    Thus, for instance, in Solzhenitsyn’s description of Soviet male prison culture, a recipient of anal sex would be shunned horribly. Their fellow GULAG prisoners forced them to eat separately. The prison administration would even drill a small hole in near the edges of their bowls, so that the other prisoners would know not to eat from those bowls. Their partner, on the other hand, would be regarded much as a Lothario is often regarded: laughably oversexed, perhaps, but still unquestionably one of the boys.

    It has long been true that the majority of gays and lesbians have had full sexual relations with a member of the opposite sex. As I heard a gay man once say, “The gayest of men and the most lesbian of women can have a child together if they want.” It also used to be said and thought that “bi today—gay tomorrow.” Who, with any knowledge, believes that now? Today, the talk is of sexual ‘fluidity.’ One’s true sexual identity, it is now said, can change across one’s lifespan, even multiple times.

    Of course, talk of sexual ‘fluidity’ wins neither sympathy nor court battles. The older, simpler story works better: biology and only biology determines one’s true sexual identity inescapably and for life.

    You will often see claims of this or that study supporting a biological basis for homosexuality. What you will rarely see, however, are the degrees of correlation. It turns out that many people who, on their genes, would be expected to be homosexual are contentedly not so, and many who claim to be homosexual are actually just passing.

    Frankly, fundamentalism appears to be better correlated with genes than homosexuality. Shouldn’t that mean that a fundamentalist who refuses to supply a wedding cake to a gay couple has a better claim in court?

    There was a time when lefties like me were profoundly suspicious of any claim of biological determinism. Those sorts of arguments belonged to eugenicists, fascists, nazis, and other right-wingers.

    Lefties would, instead, try to discern how the cultural superstructure perpetuated privilege.

    But that was then and this is now.

    If, however, single-sex marriage caused no harm, beyond a certain tweaking of Victorian sensibilities, why oppose it?

    To illustrate this at length will require another full posting.

    Suffice it to say that in the winner-take-all US it will be considerably more cruel than in Northern Europe, but the links will be virtually invisible and many of the victims will only have God to talk to. The harm will fall disproportionately, as it does so often, on poor people, women, children, and minorities, just as surely as CAPTA (1974) followed Eisenstadt v. Baird (1972) and Roe v. Wade (1973).

    Until next time, if you’re willing to carry on this discussion. I’m going to be at scout camp all week with my three eldest.




Leave a Reply