Does the US Supreme Court’s Obergefell decision settle the marriage debate in the United States? Yes and no. Yes, it settles the legal debate, for now and for the foreseeable future. (The chance of a reversal by a constitutional amendment or a future court is virtually nil.) But, as all sides recognise, marriage is more than a legal relationship. It is one thing for the state to allow you to marry; it’s another for your family to show up at your wedding and be happy for you. Intra-familial debates rage on, as do theological debates in various denominations about the boundaries of sacramental marriage.
One thing the Obergefell decision does nicely is to rebut what we might call the Marriage Myth, notwithstanding the efforts of the various dissents to maintain it. According to the Marriage Myth, marriage was created for a single essential purpose: to bind mothers and fathers to each other for the benefit of any children they might create. On this view, same-sex “marriage” is not so much a bad idea as a category mistake: the term same-sex marriage makes no more sense than the terms four-sided triangle or married bachelor. That’s because marriage, by definition, requires a man and a woman – as does procreation, which is its guiding principle.
The problem with this Myth is obviously not that child welfare is unimportant, either in itself or as a reason for marriage. Of course it’s important, and of course it is an important reason for marriage – both why marriage emerged and why we should continue to support it. The problem is that the Myth ignores marriage’s history as a complex institution with multiple overlapping purposes. In the words of the Court, “The history of marriage is one of both continuity and change.” Once viewed mainly as an economic arrangement – often decided by the couple’s parents – marriage is now understood as a voluntary commitment based on love. Once viewed as hierarchical – with the wife’s legal status subsumed under the husband’s – marriage is now understood as involving equal partners. As Justice Kennedy explains, “These and other developments in the institution of marriage over the past centuries were not mere superficial changes. Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential.”
Another problem with the Marriage Myth is that it confuses procreation, which does require one male and one female, with child welfare, which does not. Indeed, as Justice Kennedy argues, excluding same-sex couples from marriage is in fact antithetical to child welfare, because of the many same-sex couples who are currently raising children: “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.”
In other words, marriage’s connection to child welfare is not a reason for opposing marriage equality; it is a reason for embracing it.
Those who continue to insist that marriage must be male-female by definition have a cramped view not only of marriage but also of language, both of which change over time. Consider an analogy: when the American League first adopted the designated hitter rule in 1973, allowing someone else to bat in place of the pitcher, many purists objected “That’s just not baseball!” Today, virtually all competent English speakers use the term “baseball” to refer to a game that includes the designated-hitter rule. We can still argue about whether that rule is a good idea, whether it should have been adopted in the first place, or whether it should be maintained. But to argue about whether the Yankees or the Red Sox are actually playing baseball is to misunderstand how linguistic conventions work. Moreover, the focus on the definitional debate is a distraction from the moral debate. One cannot settle policy questions merely by opening a dictionary.
But what about constitutional questions? Chief Justice Roberts (not to mention the other dissenters) rests much of his case on the definitional objection: “Petitioners and their amici base their arguments on the ‘right to marry’ and the imperative of ‘marriage equality.’ There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally. The real question in these cases is what constitutes ‘marriage,’ or – more precisely – who decides what constitutes ‘marriage’?”
It may be tempting to answer, as Chief Justice Roberts does: Let the people decide. But that answer ignores the role of the Court, which is to make sure that what the people are deciding about legal marriage comports with the Constitution – particularly, in this case, the 14th Amendment’s guarantees of liberty and equality. Philosophical and theological debates about the definition of marriage are fine, but what legal marriage does is to confer certain rights and privileges. If the state grants rights and privileges to some citizens and not others, it needs good reasons for the differential treatment. “Child welfare,” as already noted, does not constitute such a reason here. Nor does “procreative potential,” as long as the elderly and infertile are permitted to marry. Nor does natural law theory, as I’ve argued before in The Philosopher’s Magazine.
In the face of such weak rationales, “Let the people decide” sounds less like judicial restraint than an abdication of the Court’s responsibility to ensure equal treatment under the law. The philosophical and theological debates may rage on, but the constitutional debate has been settled, and settled rightly.
