On June 26, 2015, the Supreme Court decided in favor of extending to same-sex couples the right to marry. The case, Obergefell v. Hodges, made national a conception of marriage that had already been enacted in 37 states: that two members of either sex could marry. Though it notably reinforced this gender binary, the case was the culmination, as far as we can see, of the fight for marriage equality, and was a significant victory for the broader gay rights movement. Upon the ruling, proponents of same-sex marriage celebrated outside the Court in Washington, D.C. and around the country. The White House was illuminated with the colors of the gay pride flag. Across all major social media platforms, supporters shared images with rainbow filters and showed their support for the Court’s decision with “#LoveWins.” The hashtag was a joyful declaration of long-awaited victory, but it also mischaracterized the Court’s actual holding in Obergefell.
By the 2015 decision, most Americans supported marriage equality. For them, Obergefell was a step in the right direction. A Quinnipiac poll released in August 2015 showed that 53% of American voters supported same-sex marriage, and an identical 53% supported the Supreme Court’s decision to legalize same-sex marriage nationally. In the particularly polarized climate of what is often referred to as two distinct and isolated Americas, this narrow majority falls roughly along partisan lines. A 2016 Pew Research Center poll showed that 70% of Democrats and 61% of independents support same-sex marriage, in contrast with only 33% of Republicans. Given this data, it seems that Obergefell marks a win for Democrats, or at least for the liberals and progressives that comprise most of the party. It is therefore critical to emphasize that Obergefell was not a progressive ruling. Though the result was consistent with the progressive position in favor of same-sex marriage—the case advance same-sex marriage—Obergefell did not advance a progressive justification of marriage equality.
The progressive approach to same-sex marriage focuses on equality. This contrasts with the conservative approach, which focuses on marriage. A progressive decision in a marriage equality case like Obergefell would therefore justify same-sex marriage as a right guaranteed to gays and lesbians by their equal status in society. For progressives, the right in question is not necessarily that to marry. It is more accurately the right to enjoy equality. To this end, a progressive decision would conceive of sexuality as a suspect classification, akin to race or religion, under the Equal Protection Clause of the Fourteenth Amendment. Accordingly, discrimination based on sexual orientation would trigger the Court’s application of the “strict scrutiny” standard, under which same-sex marriage bans would, in theory, not prevail.
A progressive opinion could also invalidate same-sex marriage bans as unconstitutional forms of discrimination based on sex, rather than on sexual orientation—as did the Hawaii Supreme Court in a 1993 case. Under same-sex marriage bans, a man can marry a woman. Another woman, however, cannot marry that woman. Though it is clearly implied, sexual orientation need not be invoked. Laws that restrict one woman’s right to marry another can be formulated as restrictions based on sex, and not necessarily or explicitly on sexuality. This would trigger “intermediate scrutiny,” under which the Court would rule that the government interest to restrict marriage to opposite-sex couples is insufficient for the infringement upon individuals’ right to marry.
A progressive opinion that focuses on sex rather than sexual orientation would, accordingly, rely to some degree upon the liberal ideal of autonomy, or personal choice, in a sort of hybrid decision. Without acknowledging the role played by sexual orientation in the choice of partner by gays and lesbians, the Court would relegate same-sex couples to a result of voluntary choice, with no claim to the immutability of sexual orientation. In such an opinion, though, the Court would still apply a heightened standard of scrutiny above a simple rational basis review, triggered by the classification of sex under which those in same-sex relationships are already protected. In the absence of the establishment of sexual orientation as a protected classification, this is perhaps an ideal, though minimalistic, decision for positioning gays and lesbians as equal members of society.
In its Obergefell opinion, written by Justice Kennedy, the Court acknowledges the 1993 Hawaii case as one of the first to reckon with the legal question of same-sex marriage. Kennedy notes, however, that the decision “concerned” some states, which feared its implications, and cites subsequent laws, including the 1996 Defense of Marriage Act, which reasserted marriage as “between one man and one woman as husband and wife.” Seemingly concluding that an argument based on sex discrimination alone is not sufficient to secure same-sex marriage rights, Kennedy does not similarly advance the argument in the Obergefell ruling. So, what does the Court advance? If the decision that establishes marriage equality, a decidedly progressive ideal, is not progressive itself, what is it?
Somewhat surprisingly, the Obergefell decision is quite conservative. It is not grounded in any real conception of the equal status of gays and lesbians in society. Instead, it draws its validity from virtually absolute assertions as to the merits of the institution of marriage. Justice Kennedy grounds the right to marry as fundamental under the Constitution using the following four “principles and traditions”:
- One’s choice regarding marriage is among “the most intimate [choices] that an individual can make,” and such a personal choice is “inherent in the concept of individual liberty.”
- Marriage is a “two-person union unlike any other in its importance to the committed individuals,” uniquely offering “the hope of companionship.” To this end, Kennedy states that the Court has already ruled in Lawrence v. Texas—a 2003 case in which the Court struck down state laws that criminalized sodomy—that same-sex couples are free to “enjoy intimate association.” He asserts, however, that “it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty,” which is implicated by the right to marry.
- Marriage is important in the validation of families, acting as a ‘safeguard.’ Particularly, marriage “affords the permanency and stability important to children’s best interest.” Without such benefits, children in same-sex families “suffer the stigma of knowing their families are somehow lesser.”
- The Court’s prior jurisprudence as well as “the Nation’s traditions make clear that marriage is a keystone of our social order.” As a “building block of our national community,” it is an association to which society pledges support, “offering symbolic recognition and material benefits to nourish the union.”
Kennedy claims that these principles “apply with equal force to same-sex couples.” The principles themselves, though, do not make any claim to the inherent equality of same-sex couples. Though the Court makes references to individual liberty and to the importance of validating same-sex families—or, to seemingly liberal and progressive values—each of these four principles draws its gravity primarily from the importance of marriage itself as an institution:
- One’s personal choice regarding marriage is important because marriage plays such an important role in one’s life, and has such far-reaching implications.
- Same sex couples should be granted the right to marry because there is no other two-person union akin to marriage “in its importance.”
- Marriage provides a key form of validation for children and families.
- And, marriage is no less than necessary for the “social order.”
Kennedy is clearly not guided here by the progressive view that same-sex couples should be considered equal in society and that laws should protect this equality. Instead, in arguing for marriage equality, Kennedy relies almost entirely on the importance of marriage itself as an institution rather than on the inherent equality of same-sex couples or relationships—or even on the liberty of those within such relationships to choose their partners in marriage, as would characterize the liberal approach to marriage equality. In this way, he advances a decidedly conservative argument on the merits of marriage equality.
Attorney Ted Olson articulated the “conservative case for gay marriage” in a 2010 Newsweek article. A prominent authority on law in the Republican Party, Olson represented the petitioners in Hollingsworth v. Perry (2013) who successfully argued against California’s Proposition 8 that banned same-sex marriage. To Olson’s credit, he rightfully formulates marriage equality as a civil rights issue. He even advances the generally progressive argument that, along with protections for those of different “races, religions, and places of origin,” Americans can fulfill the “elusive promise of equality” by extending legal protections to include sexual orientation. Obergefell certainly falls short of this.
Olson also grounds his justification for marriage equality, though, in the importance of marriage itself. He criticizes his fellow conservatives’ opposition to marriage equality, noting it “does not make sense, because same-sex unions promote the values conservatives prize.” He formulates marriage as an inherently conservative institution, and claims, “The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance.” Olson contends that extending the purview of the institution of marriage by granting marriage equality advances the conservative values that marriage seemingly embodies. Olson thus favors the expansion of marriage as a conservative. Olson’s position, of course, is not the prevailing position on same-sex marriage among conservatives. But, just as the traditionally conservative position on same-sex marriage—which favors its suppression—is not without detractors, like Olson, the gay rights movement’s focus on marriage equality is certainly not without its progressive critics. Some, in fact, agree with Olson that marriage is inherently conservative—but argue, from this premise, that same-sex couples should not aspire to marry.
In Wedlocked: The Perils of Marriage Equality, Columbia Law School professor Katherine Franke opines, given that so many same-sex couples have already exercised their legal right to marry, that “now is the time to ask this important, if not painful, question: What have we gotten ourselves into?” Franke asserts that, legally, “gaining marriage rights really boils down to surrendering the breakup of your relationship to governance by rules set by the state.” With regard to history, it’s safe to say that these rules haven’t been great. From imposing strict gender norms to perpetuating legal limitations on women’s rights—to property ownership, for example—marriage has quite a flawed history. For Franke, the inherent heteronormativity of the institution poses a challenge to same-sex couples, which will suffer from the inevitable imposition of those expectations. In The Tolerance Trap: How God, Genes, & Good Intentions Are Sabotaging Gay Equality, Suzanna Danuta Walters, professor of sociology at Northeastern University, criticizes the marriage equality movement for centering this issue in the broader gay rights movement. She had feared that this would “not only dull our movement to the vibrancy of queer difference,” but would impose a hierarchy in which married gay couples ‘push aside’ those who instead seek “sexual and gender liberation.”
Franke and Walters, among other commentators on the marriage equality movement, question whether marriage is a valuable end for gays and lesbians. To this point, the late Justice Scalia makes an impressive, though perhaps not earnest, contribution in his Obergefell dissent. On the majority’s assertion that marriage, by virtue of its uniquely “enduring bond,” allows two people to “find other freedoms, such as expression, intimacy, and spirituality,” Scalia asks, “Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.” Beneath his sarcasm, Scalia makes a good point—that marriage itself may not something to which individuals or couples should aspire. Of course, it is admittedly safer and easier to criticize the efficacy of marriage for same-sex couples now that they have a choice in the matter.
But any fault of marriage, like that to which Scalia alludes, seems to be lost on the majority. Regarding the importance of the institution of marriage, Ted Olson asserts in his Newsweek piece that marriage “is one of the basic building blocks of our neighborhoods and our nation.” In addition to its role, in many cases, as a religious sacrament, marriage acts specifically as “a civil bond in this country.” Justice Kennedy strikingly mirrors this language in the majority opinion, asserting that marriage is a “building block of our national community” and an association to which society itself pledges its support. Kennedy’s fourth principle exposes with great clarity that the Court adheres to a conservative conception of marriage equality—one that upholds marriage, but not equality itself.
However, if marriage ceases to be such a ‘key’ public institution, one might ask, would gays not have the right to marry? Marriage rates are at relative lows, while divorce rates are at relative highs. More and more people reject the idea that marriage is a crucial requisite for childbearing. If marriage is indeed a key public institution, it may not be so for long, presenting a troubling crack in Kennedy’s argument. The merit of the progressive argument for marriage equality, which is grounded in the inherent equality of gays and lesbians, is that marriage need not be “fundamental” for the right of marriage to be extended to them. They ought to possess the right, along with heterosexuals, simply by being equal citizens under the law.
Kennedy alludes to equality arguments, notably recognizing sexual orientation as immutable in what seems to be an allusion to such conditions as race or gender. The merit of this immutability argument is questionable, though, as it seems to suggest that one should not choose homosexuality if a choice were indeed available. He also makes a grand statement as to the ever changing conceptions of equality, that “new insights and societal understandings can reveal unjust inequality within our most fundamental institutions that once passed unnoticed and unchallenged,” which this case presumably seeks to rectify with regard to same-sex marriage. But this decision does not rectify the status of gays and lesbians as a group; it does not grant equality to gays and lesbians, and it establish theirs as a protected group under the law.
The central holding in Obergefell remains that “the right to marry is a fundamental right inherent in the liberty of the person,” and only then does the Fourteenth Amendment work to grant that right to same-sex couples. The decision draws justification from the idea that marriage is a fundamental right, a claim that relies on Kennedy’s conception of marriage as a crucial institution in society that provides unique and ostensibly absolute benefits to those who engage in it. However, many progressives—and others—know this not to be true. Not only is marriage not an absolute good, which Kennedy may acknowledge, but marriage can also be quite harmful in some circumstances, and even as an institution, as Franke and Walters would contend. More pressing than this, though, is that the right of gays and lesbians to marry should not rest on the question of the merits of marriage. It should rest solely on the fact that they are persons under the law who should be granted the same rights that are afforded to all others. Sexual orientation should not be the basis on which any law restricts people’s rights. This Court, though, has yet to say so.
Thus, contrary to the initial claims of victory for something so elusive as ‘love,’ a more apt victory claim applied to Obergefell would be “#MarriageWins.” For progressives, Obergefell is pretty much as bad a decision as a landmark case for marriage equality could have been—which is to say that it is good, but not good enough. Obergefell is, of course, better than what we had before. But the arguments do matter. The Court’s specific holdings and its claims regarding our societal institutions matter. It is important that people are not treated as second-class citizens on the basis of their sexual orientation. And it is important for us to recognize that Obergefell doesn’t get us there.