Marriage

• Pages: 45-68
• Author: Walter Wadlington,Raymond C. O'Brien,Robin Fretwell Wilson

45

Chapter 3

MARRIAGE

I. Marriage as an Institution

Justice Anthony Kennedy, writing for the majority in the

Supreme Court’s 2015 decision of Obergefell v. Hodges,

1

characterizes

marriage as the following:

From their beginning to their most recent page, the annals

of human history reveal the transcendent importance of

marriage. The lifelong union of a man and a woman always

has promised nobility and dignity to all p ersons, without

regard to their station in life. Marriage is sacred to those

who live by their religions and offers unique fulfillment to

those who find meaning in the secular realm. Its dynamic

allows two people to find a life that could not be found alone,

for a marr iage becomes greater than just the two persons.

Rising from the most basic human needs, marriage is

essential to our most profound hopes and aspirations.

2

Throughout the Obergef ell majority opinion, Justice Kennedy

writes that marriage is the foundation of government, transcendent,

sacred, and that a person’s decision to marry is among life’s

momentous acts of self -definition. Specifically, “[m]arriage responds

to the universal fear that a lonely person might call out only to find

no one there. It offers the hope of companionship and understanding

and assurance that while both still live there will be someone to care

for the other.”

3

But while Obergefell uses l anguage emphasizing marriage’s

traditional characteristics, the majority opinion proceeds to broaden

the definition of marriage to include same-sex couples, granting them

the right to marry as “part of the liberty promised by the Fourteenth

Amendment [and] is derived too from that Amendment’s guarantee

of the equal protection of the laws.”

4

This is the defining element of

the same-sex marriage decision, the expansion of the definition of

marriage to include persons of the same-sex. By this expansion, the

Court emulated a decision from 1967, Loving v. Virginia,

5

which held

1

Obergefell v. Hodges, 576 U.S. 644 (2015).

2

Id. at 2594.

3

Id. at 2600.

4

Id. at 2602.

5

Loving v. Virginia, 388 U.S. 1 (1967). For a more comprehensive discussion of

how the cultural milieu evolved to include interracial marriage and then same-sex

marriage see Chapter 1.

46

MARRIAGE

Ch. 3

that the definition of marriage could evolve to include persons person

of different races. In his dissent to Obergefell, Chief Justice John

Roberts warns of a continuing evolution of the definition of marriage,

commenting that polygamy is next. This prompts the question, if the

definition of marriage can evolve, what might be next?

Regrettably, commentators discussing Obergefell too often focus

on the historical impact of the Court’s same-sex marriage decision,

its pivotal success for the LGBT community and its supporters.

Admittedly, Obergefell was a long-awaited victory,

6

but attention

should focus on the Court’s characterization of marriage: tha t

marriage is among the fundamental rights protected by the United

States Constitution. Undoubtedly, the Court’s decision squarely rests

upon the fundamental nature of the institution of marriage, a status

gained and protected as a fun damental liberty in terest within the

ambit o f the Due Process Clause.

7

Hi story and tradition make the

status of marriage fundame ntal, the decision in Obergefell arguably

enhanced that status. Once the definition was enhanced, same-sex

couples—analogous to e arlier interracial couples —share in the

fundamental right to marry. If marriage we re not fundamental, the

Court could not e stablish same-sex marriage within the liberty

interest of Due Process Clause of the Fourteenth Amendment.

Prior to analyzing the current state of marriage , it is useful to

pinpoint the reasons why the Court in Obergefell held that marriage

is fundamental. First, the personal choice of entering into marriage

is inherent in the concept of a person’s individual liberty. Second,

marriage enhances a two-person union because of its historical

underpinnings and the status recognition given to it by government

and third-parties alike. Third, marriage safeguards children and

families, drawing meaning from related rights o f childbearing,

procreation, and education. Fourth, marriage is the keystone of the

nation’s social order.

After the Court mandated that marriage must be made

available to same-sex couples and recognized among the States in the

same manner as marriage between opposite- sex couples, detrac tors

argued that this decision signaled the end of the institution of

marriage. Justice Samuel Alito, in his dissenting opinion in

Obergefell, suggests that the decision continues the fraying of the

traditional definition of marriage, the effects of which are illustrated

in disregard of conscience rights and the significant number o f

nonmarital births. However, despite critic isms, there have been no

major judicial or legislative developments since Oberg efell, with one

6

For a discussion see, e.g., LILLIAN FADERMAN, THE GAY REVOLUTION: THE

STORY OF THE STRUGGLE (2015).

7

See, e.g., Washington v. Glucksberg, 521 U.S. 702 (1997).