Like many, I’m still digesting the Supreme Court’s Obergefell decision—not just its text, but its personal and social significance. When I wrote Debating Same-Sex Marriage with Maggie Gallagher (Oxford University Press, 2012), only a handful of states permitted same-sex couples to marry. In the three years since, that handful grew to dozens; last Friday’s decision grows it to all 50. One striking thing about the decision itself is the importance of the definitional question: What is marriage?
One striking thing about the decision itself is the importance of the definitional question: What is marriage?
If the state prohibits same-sex couples from marrying, does it thereby interfere with their liberty, as the majority argues, or does it simply decline to grant them certain benefits? If the latter, is it treating them unequally—and thus violating the Equal Protection clause of the 14th Amendment—by privileging certain citizens without sufficient reason for the distinction? The answer depends on what marriage is. If marriage by definition requires (at least) one man and one woman, then same-sex “marriage” is impossible by definition, and one does not treat people unfairly by denying them something impossible.