On June 26, 2015, the ancient institution of marriage in the United States was permanently changed from an institution centered on biological truths and the protection of women and children to one centered on individual autonomy, consent, and desire. (1)
In the majority opinion of Obergefell v. Hodges, written by Supreme Court Justice Anthony Kennedy, the High Court expanded the definition of marriage to include same-sex couples by basing the purpose of the institution on evolving societal norms. (2) Though Justice Kennedy cited the Fourteenth Amendment's Due Process Clause and its protection of liberty through the Due Process and Equal Protection Clauses, (3) he failed to base the Court's rationale on those laws, while also failing to capture marriage at its most basic understanding--an institution based around its inherent procreative function. (4)
Our thesis is that the decision in Obergefell is a game-changer for women in three areas. First, Obergefell changes women's relationships with men. Second, it affects and alters equality for women in many ways. Third, Obergefell modifies the relationship between women and their children by removing a required complementary party of opposite gender in parenting, and thus loading a double-burden of parenting on a greater number of mothers.
We will illustrate this thesis by introducing the topic with a description of the Court's intentional movement from conjugal norms in marriage to a pure consent-based theory of marriage. In Part I, we discuss how Obergefell changes women's relationships with men. Part II then examines how the case affects and alters equality for women. Part III illustrates how Obergefell modifies the relationship between women and their children, by removing a required complementary party of opposite gender in parenting. The decision in Obergefell is indeed a grave game-changer for women.
Introduction: From Conjugal Norms to Consent Based Marriage Law
Conjugal Marriage Norms
At its most basic understanding, the purpose of marriage is "to bring a man and a woman together as husband and wife" initially, to pave the way for them to later establish a stable environment as "father and mother" to the offspring of their sexual union. (5) Conjugal marriage (6) fosters durable unions, encourages spouses to remain sexually faithful, and provides a safe environment to raise biological children jointly. (7) Only man-woman couples do this. (8) Because marriage connects mothers and fathers through biological procreation, it provides security, stability, and particularly works to benefit those in disenfranchised communities. (9) The conjugal view "is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so." (10)
The redefinition of marriage undermines the vital role of marriage by disconnecting sex, procreation, and childrearing. (11) The norms of conjugal marriage include several vital elements that provide social order. (12)
Changes in law alter societal views, expectations, and, ultimately, behavior. (13) The latest transformation in marriage, based primarily on privacy, transforms the public meaning of marriage in several ways. (14) First, it removes gender diversity from marriage. Second, it eliminates the preferences for biological kinship. Third, and arguably, most importantly, it separates marriage from sex and procreation. The shift in focus on adults rather than children fosters autonomy that "creates a wedge in the notion of marital oneness." (15) This separation "weaken[s] the marital bond" (16) and drives a wedge between parents and their children.
Professor Helen Alvare discusses this altered view on marriage as the notion of a more egocentric, adult-centered approach, which views "marriage as more of a self-seeking than a self-giving institution, and thus steer[ing] marriage and families in a direction precisely opposite that which is needed to reconnect these institutions to children and to the larger society." (17) "For many centuries, marriage was about bridging families, but '[t]oday, we see marriage as a commitment between two individuals.'" (18) Marriage is not about protecting women or children anymore; it is about sexual attraction. (19) This article will focus on the adverse effects that the redefinition of marriage will have to women over time.
Obergefell Changes Women's Relationships with Men
Connections between women and men have been dramatically changed by Supreme Court jurisprudence in Griswold, (20) Roe, (21) and Casey (22) with each case basing a move from normative procreative standards--that generally work to protect women--to stronger privacy for all of the parties involved. (23) These cases are all critical to the Obergefell rationale for marriage expansion. (24) This strategic, privacy-jurisprudence progression, however, has negatively affected women by continually allowing men to be released from their procreative responsibility. (25)
The redefinition of marriage, completed in Obergefell, will almost certainly result in a greater exodus of heterosexual men from marriage, (26) from the women they procreate with, (27) and from their children. (28) Marriage encourages men to commit to women and children. (29) "Marriage increases the odds that a man will be committed to both the children that he helps create and to the woman with whom he does so." (30)
The culture of fatherhood changes in response to social and political changes. Scholars have recognized that fathers are more sensitive than mothers to contextual forces. The redefinition of marriage, forced upon all states in Obergefell, now includes same-sex couples--essentially working to make the involvement of men potentially "ancillary and optional." (31) As the redefinition of marriage treats gender as an unimportant aspect of marriage, heterosexual men could well believe they are unimportant aspects of the family. (32) Indeed, some scholars have promoted the idea that fathers are dispensable to families. (33) New York University Professor, Judith Stacey, and a demographer from the University of Southern California, Timothy Biblarz, have argued that men may not be as essential to families as originally thought, stating that quality parenting matters more than gender. (34) Equating lesbian parents with a double dose of feminine parenting, Stacey and Biblarz argue that children raised by such parents are likely to spend more time with their parents, handle emotional issues better, and have fewer behavioral problems than children with heterosexual parents. (35) As such messages are sent to fathers--noting their unimportance as compared to that of mothers or noting that they are dispensable parental figures--men "will be less likely to marry or actively engage as fathers." (36)
"Over the past several decades, marriage rates have fallen dramatically in the U.S." (37) Since 1970, marriage rates have declined by nearly sixty percent. (38) Numerous studies have determined that marriage is in decline among disparate groups for various reasons. For instance, the marriage decline has been particularly pronounced among millennials, where the marriage rate dropped from sixty-eight percent to twenty-six percent between 1960 and 2008. (39) One recent study has shown that the shortage of marriageable men is particularly high among African Americans and well-educated white women, due to the increased economic independence of such women. (40) The cause of marital decline has been explained by economic reasons, (41) shifting public attitudes, the increase of women in the workforce, and the increase in contraception use. (42) A prominent cause behind marital decline is the decrease in marriageable men. (43) We contend that the redefinition of marriage is likely to only exacerbate the problem of the decrease in marriageable men.
In conjunction with the declining marriage rate in America, there is a significant crisis in America of fatherless children. (44) In fact, "one out of three [children]--live without their biological dad in the home." (45) In 2013, thirty-five percent of children lived in single-parent families; (46) which "may include cohabitating couples and do[es] not include children living with married stepparents." (47) When men exit marriage, they more often than not leave women alone to do the majority of parenting. (48) When such men do return to the mothers of their children, they often do so for personal and self-centered reasons, rather than to provide for or protect those women who are often the mothers of their children. (49)
The already prevalent absence of fathers will likely only be exacerbated by the change to state-sanctioned marriage, diluting and diminishing the role of fathers in the conjugal view of the marital institution. These facts have illustrated that this exit of men from marriage will largely remove men from the lives of women who father their children, causing harm to such women, particularly those of disenfranchised communities. Consequently, women will be left to fend for themselves and their children, causing more and greater individual parenting by mothers; such changes alter women's relationships with men in ways that do not promote what is best for women.
Obergefell Adversely Affects Equality for Women
As the purpose of marriage shifts from one of permanence in opposite-sex households to genderless, private decisions, we contend that women lose certain measures of equality. In this section we will discuss that wealth, social, health, victimization, and procreative inequalities will grow for women. Essentially, these changes will create less equal opportunity generally. And as women's equality is undermined, women will inevitably experience expanded inequality. (50)
Strong Potential for Wealth Inequality
It is a well-documented fact that marriage increases wealth. (51) As the pool of heterosexual...