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, only a handful of states in America 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 states.
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.
That definitional argument underlies all four dissents, sometimes only implicitly, and it was a significant part of the debate between Gallagher and me. But even if Gallagher and other social conservatives are correct to believe in a “natural,” pre-political, essentially heterosexual union called marriage, that wouldn’t resolve the disagreement in Obergefell. That’s because the question remains whether the state-granted legal privileges and benefits currently associated with civil marriage must be reserved only for those in so-called “natural” marriages, thus understood. The Court has said no, rightly observing that to doing so is an affront to gay people’s liberty and equality. As I wrote in Debating Same-Sex Marriage:
“The Fourteenth Amendment of the U.S. Constitution guarantees the “equal protection of the laws.” By itself, I don’t believe that this guarantee automatically gives anyone—gay or straight— the right to marry, at least not in the sense of a particular kind of state recognition. As Martha Nussbaum (among others) has argued, there are various ways in which the state might consistently and fairly treat its citizens, including getting out of the marriage business altogether. But once the law state provides marriage as an option for different-sex partners, even if they cannot or choose not to have children; even if they are elderly; even if they are divorced; even if they are incapable of coitus, and thus what the new-natural-law theorists consider “real marriage”—once the law state provides marriage in all these diverse cases and more, but then denies it to same-sex couples, it is treating citizens unequally (89-90).”
Philosophers, theologians, and others will continue to debate what marriage really is, as they should. Obergefell doesn’t change that. What it does do is to settle an important constitutional question, and thereby to extend civil marriage rights to many people—like me—who have long hoped for them.
Featured image credit: “Supreme Court Ruling Celebration”, by Russell Mondy. CC-BY-NC-2.0 via Flickr.