Marriage, self-definition and self-expression.

• Author: Duncan, William C.
• Position: Symposium on Obergefell v. Hodges

Introduction

Professor Anthony Esolen begins a recent book with a question: "Is it possible ... for a well-intended and intelligent person to get everything wrong, in the very matter upon which he sets his mind most energetically?" (1) He answers: "It is more than possible. If he begins from false principles." (2) Then, he offers this analogy:

He will be like a carpenter whose tools are out of kilter. His T-square is oblique, his straightedge is crooked, his level wobbles, his plumb line drifts. If he keeps on building with those tools, never stepping back to look at what he has actually wrought, he will not have built a bad house; he will not have built a house at all. He will have built a wreck, a monstrosity. The first strong wind will send it toppling. (3) For the United States Supreme Court, the tools of the trade are legal (and increasingly, sociological) analyses. They are disclosed in the written opinions of the justices and so are reasonably easy to identify. Thus, when the Court set out to refurbish the institution of marriage in the summer of 2015, to make it a little roomier, we could assess the soundness of the theoretical tools it used and make some predictions about the likely stability of the structure they have erected.

At the time of this writing, the national mandate for same-sex marriage is not even half a year old. So, it is too early to tell precisely how that structure will hold up, but there is still plenty we can observe about the Court's "renovation" project.

In Obergefell v. Hodges, (4) the Court's analytic tools were primarily, sociological and theoretical, rather than strictly legal. More simply, they are the justices' presuppositions about reality. These are derived from, and reflected in, a series of precedents (many noted in the majority opinion) involving claims for unenumerated rights surrounding sexuality and family, and beginning roughly with Griswold v. Connecticut, (5) These cases have established as orthodoxy among influential legal elites a series of propositions.

* "Sexual expression is," at best, the most important "item in the toolkit of expressive individualism." (6)

* There are no differences of any significance between men and women. (7)

* The State has an obligation to ameliorate or completely shield individuals from any unwanted consequences of sexual expression. (8)

* No freely chosen sexual coupling is illicit and none should be privileged above another. (9)

* Civil marriage is but a manifestation of individual will, valuable because it allows the State to bestow dignity on individuals by valorizing their intimate choices. (10)

These assumptions are evident throughout the Obergefell decision. Together, they contribute to the most salient assumptions the Court relies on in making its decision. These involve such things as the nature of personhood, the role of the State and the Court in particular, and the nature of marriage and of parenthood. The focus of this essay will be the latter two which are inextricably related. They not only determine the Court's ultimate conclusion but suggest future implications of that decision.

1. Marriage

   If one were to skip to the end of the decision to see how it ends, the Court's description of marriage would sound oddly traditional. Perhaps even echoing the famous passage in Maynard v. Hill. (11) Here is the language from the penultimate paragraph: "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." (12) The idea of "union," and the related idea that a married couple are more than just two associated individuals, are very much a part of the understanding of marriage that prevailed until quite recently. These related concepts derive, in part, from a recognition of the significance of the biological union of a husband and wife that, in the older formulation, forms the "foundation of the family" by making possible the addition of children. Such a relationship is surely more than the sum of its parts. These concepts also derived from a sense of permanence that pervaded the understanding of marriage prior to the no-fault divorce revolution.

   This, however, is not precisely what the majority had in mind. The continuity of description is merely cosmetic. Like a "right" in the Soviet Constitution, the phrases do not necessarily mean what they seem to say. (13) So, for instance, the "union" spoken of the Court means not a joining of two individuals into a permanent and fruitful unit, but rather the association of two radically autonomous individuals engaged in parallel projects of self-expression of indeterminate length and significance. The use of the word union has only emotive significance, suggesting the importance of the relationship to the parties but not really its nature.

   Indeed, in an earlier joint opinion, Justice Kennedy had compared a statutory requirement that a married woman notify her husband of her decision to abort their child (not a requirement of his consent, just a requirement of his being notified) with the doctrine of coverture, suggesting something far less than a real joining of two persons, even a mere requirement of consultation, was too constraining a view of marriage for the three justices jointly authoring the opinion. (14) The opinion goes so far as to charge that requiring a husband and wife to talk about whether their unborn child will live "embodies a view of marriage consonant with the common law status of married women but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution." (15) Needless to say, if a marriage in which spouses must consult one another is "repugnant" to the Supreme Court's understanding of marriage, then marriage is not a "union" in any substantial way.

   The Court's real, substantive view of the meaning of marriage becomes evident at the outset of the majority opinion in Obergefell. In the opening paragraph of his opinion, Justice Kennedy says the same-sex couples in the lawsuit, by marrying, are seeking to find "a liberty." That liberty, he specifies, is the right "to define and express their identity." (16) This is not a mere rhetorical flourish. Later in the opinion, he underscores this idea. The passage is describing what the majority considers to be the deprivation historically experienced by homosexual persons who were unable to civilly marry a person of the same sex. It is described this way: "A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken." (17) The operative concept is expression. Marriage, to the Court, is a means of self-expression and the inability to...