by Tim Sommers
In Bowers v Hardwick (1986), the Supreme Court Case that affirmed the government’s right to criminalize sodomy, Justice Antonin Scalia famously insisted there that there was no “right to homosexual sodomy.” This was disingenuous in more than one way. First, the statue in question criminalized sodomy in general and not homosexual sodomy in particular. But, more fundamentally, no one was arguing for sodomy as a basic right. They were arguing for a basic right to be free to make their own decisions about their own bodies, consensual intimate relations, and families – including intimate relations and the families shared by people of the same sex.
Such a right, if it exists, is unenumerated. That is, it’s not specifically mentioned in the Bill of Rights. On the other hand, the Ninth Amendment says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The tricky bit, of course, is how to know which other rights might be retained by the people though unenumerated.
In Roe v. Wade, Justice Douglas cited a “line of decisions” that established a “penumbra” of privacy. He was much lampooned for his language, “penumbra” in particular, but there’s a relatively straight forward line of reasoning available here. One way to derive an unenumerated right is to show that it is implied by, or follows from, an enumerated right. The enumerated right of citizens to be secure in their persons, houses, and papers and effects (the 4th), for example, makes no sense without the underlying assumption that you have a right to be in control of your person in the first place. Further, the “liberty” and “property” that the 14th Amendment says shall not be denied “without due process of law” surely includes the right to some degree of control over your own body.
One of the few things that Justice Alito gets right in the Dobbs (2022) decision (allowing States to criminalize any kind of abortion and, to some extent, birth control) is that he doesn’t describe the issue primarily as “privacy” – but rather as an appeal “to a broader right to autonomy.”
The relevant string of cases that develop and extend this right to autonomy and, yes, privacy, too, includes (at a minimum) Loving v The State of Virginia (the most aptly named SCOTUS case in history since it decriminalized interracial marriage), Griswold v Connecticut (access to birth control for married people), Roe v Wade (abortion decisions are left to pregnant people), Lawerence v Texas (reversing Hardwick, it decriminalized same-sex intimacy), and Obergefell v Hodges (legalized same-sex marriage). Defenders of this tradition argue that it, like the Bill of Rights itself, this is not part of a haphazard list of freedoms, but what follows from a cohesive conception of liberty. “The only freedom which deserves the name,” John Stuart Mill wrote, “is that of pursuing our own good in our own way.”
In overturning Roe and reproductive freedom, the court’s majority called this whole line of cases into question while simultaneously denying they intended to overturn them. Clarence Thomas was more honest in his concurrence writing that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because [they are] ‘demonstrably erroneous’.” If these are to be reconsider on the basis of their being demonstrably erroneous, it’s not hard to predict the outcome of such consideration.
While abortion was a natural place to start, it seems likely that, what we might call “the great rewind,” will naturally go in reverse chronological order – replaying the twentieth century backwards from Obergefell to Loving. “A conservative is someone who stands athwart history, yelling Stop!” William Buckley famously quipped. This reactionary court is actually yelling ‘Go Back! Go back!’
Since I suspect that it won’t take longer than the next four years, and Obergefell is next, in the brief meantime, I thought it might be worth saying something about marriage itself to see if it sheds any light on the fate of marriage equality in America.
A wide-variety of social practices have been seen as constituting marriage. Sexual fidelity has been treated as central – or virtually meaningless. Polygamous marriage has been widely practiced, though almost exclusively in the form of multiple wives and one husband. Currently, same-sex marriages are legal in 36 countries. Sometimes marriages are officiated by civil authorities, sometimes religious authorities, or nowadays by just about anyone. Term-limited (wedlease) or child-rearing contract-based marriages may be on the way.
As you probably know, it’s an historically recent development that marriage involves, in any essential way, a relationship of love, friendship, or companionship. Marriage historically functioned primarily as an economic and political institution used to create bonds, raise money, control inheritance, share resources and more. The dangers and temptations of “excessive” love were considered more worrisome, in that context, than lovelessness.
Of course, marriage has also historically played a central role in women’s oppression. Until very recently, when a man and a woman married, they legally became one person – the man. Married women lost the right to own property, make a will, earn money, make contracts, leave her husband, and any recourse against physical abuse and rape.
The “Head and Master” laws, a set of American property laws that permitted a husband to have final say regarding all household decisions and jointly owned property without his wife’s knowledge or consent, lasted until the state of Louisiana lost Kirchberg v. Feenstra – in 1980.
In any case, marriage can be a social status, a civil status, a legal status or all three. It can be a religious ceremony or rite. It can be a social institution or a legal contract or almost nothing at all.
The institutional philosophy of marriage is based on the idea that marriage is first and foremost a social institution, meaning that it is defined primarily by its larger social role and the expectations of society. Often the value of marriage, on such a view, is in the limitations it sets on choice in the name of the greater good. This view aspires to enforce a static conception of marriage and typically rules out same-sex marriage.
But what is there specifically about the institutional approach that rules out marriage equality? An appeal to tradition, given how various and changeable marriage has been seems weak. An appeal to social stability seems weak when 70% of people live together before marriage and roughly half of all marriages end in divorce.
What most opponents argue is that the social, institutional point of marriage is procreation. Of course, same sex partners can have and raise children, adopt and so on. People who are biologically incapable of procreating get married, and people who are unable, because of age or other reasons, to procreate stay married. Unless you introduce some sleight-of-hand about marriage only being for people who in some theological or metaphysical sense (see Natural Law Theory) would be able to, at least under other circumstances, procreate with each other. There’s even the so-called New Natural Law argument that says the marital good can only be achieved through heterosexual intercourse. This is what philosophers call “begging the question.”
Perhaps, it’s a mistake to think of marriage as an institution at all. As Marx said, “Marriage is a wonderful institution, but who wants to live in an institution?” (That’s Groucho, not Karl.)
The contractual philosophy of marriage emphasizes that marriage is something freely entered into for the good of the parties themselves, more so than for others – except, maybe, children. Whatever else it is, or was, marriage for most people now is about love, friendship, and/or companionship. So, why can’t people fashion any kind of marriage for themselves, including as many people of the same or different genders as they want? Why not term-limits or a simply an openly financial arrangement? Why not sever child-rearing, companionship, and sexual intimacy from each other and from a requirement that they be bundled into one relationship? And, of course, why can’t same-sex partners get married?
It’s a minor point, perhaps, but obviously if there are no limits on the permutations, what makes it “marriage”? More to the point, what makes it a relationship that should be state sanction is some way?
Ordinary legal contracts do not allow parties to contract to do just anything. You can’t sell yourself or your children into slavery, you can’t sell your organs, you can’t contract with a group of employees to pay them subminimum wages, etc. It turns out, therefore, that the difference between contractualism and institutionalism about marriage is a matter of degree.
The minimal philosophy of marriage is a fairly recent development. It says we ought to disentangle the bundle of rights and responsibilities that currently fall under marriage (medical decisions, inheriting pensions, taxes, and on and on), not be contracting into different kinds of marriages, but by getting the government out of the marriage business. You could even argue that if marriage is a religious institution, it violates the establishment clause (“Congress shall make no law respecting an establishment of religion…”) for the state to recognize it.
To me it feels a bit unfair to tell same-sex couples, now that you have the right to marry, we are going to minimize what being married means. On the other hand, when Obergefell goes, perhaps there’s a work-around here.
Still, it reminds me of the time my brother said to me, “I don’t believe in marriage.” I said, “Well, you’re wrong, it definitely exists.”
So, I leave you with the conclusion of Justice Anthony Kennedy’s opinion, writing for the majority, in Obergefell:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
(Note on sources: I don’t link to every mention of a SCOTUS case here (including this one), but I promise that a brief search will bring up the full text of any case mentioned.)