When the Supreme Court found a constitutional right to samesex marriage in Obergefell v. Hodges, many thought the Court was exercising its political will rather than its legal judgment. Noting the absence of same-sex marriage in early American history and assuming that marriage is a relatively static and timeless social institution (a view that the author calls “marriage essentialism”), many concluded that Obergefell could not have been grounded in legal precedent.
In this Article, however, the author argues that marriage was itself evolving in numerous ways in the centuries and decades prior to Obergefell. Marriage was evolving from a hierarchically organized relationship of status, which gave certain religious and communal institutions a great amount of de facto control over patterns of marital relation and sexual and reproductive liberty, to a more autonomously governed private relationship, grounded primarily in respect for personal choice and concern for the emotional well-being of partners in intimate relationships. In addition, whereas the early traditions of marriage in America supported two illiberal and inegalitarian caste systems, relating to sex and race, marriage had already become much more egalitarian, libertarian, and diverse in function. Hence, the real legal question in Obergefell was not whether—given a fixed but mistaken conception of marriage as having an essential core — there was any direct legal precedent for same-sex marriage in the United States. The real legal question was whether—given the recent developments in the social institution of marriage in America prior to Obergefell— it violated the Equal Protection Clause to give Americans unequal rights to participate in this new and more libertarian form of marriage, based solely on their sexual orientations and resulting romantic choices. The Supreme Court answered this question in the affirmative, but the false premise of marriage essentialism has prevented many from understanding the correct legal grounding for this case.
To support these claims, the author draws on the views of four of the symposium contributors, and offers a final, synthesized viewpoint on the role that contemporary marriage should play in American society. Given recent developments in marriage, the author suggests that attempts to stifle same-sex marriage can undermine personal religious liberty. The author also considers how the move from status-based to contract-based marriage may affect the promotion of child welfare, and how the law should respond.
The full text of this Symposium is available to download as a PDF.