The freedom to choose to marry.

• Author: Colker, Ruth

Marriage 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.

--Obergefell v. Hodges (1)

Marriage is the batterer's gateway to establishing power over the family finances and property.

--Dana Harrington Conner (2)

INTRODUCTION

Over the last several decades, the Lesbian, Gay, Bisexual, and Trans (LGBT) (3) community made the political decision to push for "marriage equality" and the "freedom to marry," rather than "same-sex" marriage or "homosexual" marriage. (4) Like the decision that Justice Ruth Bader Ginsburg made in the 1970s, to refer to "gender-based" equality rather than "sex-based" equality, this change in terminology tried to focus society on the concept of "equality" rather than "sex" (5) and the category of "marriage" rather than "homosexual marriage." (6) Although this change in terminology cannot, alone, account for changes in public opinion, it does coincide with increasing public acceptance of individuals having the freedom to marry the person they love without regard to sex or sexual orientation. (7)

Thus, when the Supreme Court announced its decision in Obergefell v. Hodges, (8) the leading LGBT rights organizations applauded a victory for "marriage equality" (9) or the "freedom to marry." (10) Partially reflecting this change in terminology, the Obergefell Court described the victory as one for "same-sex marriage," (11) the "freedom to marry," (12) and the "right to marry," (13) although it never mentioned the term "marriage equality."

But what is "marriage equality" and the "freedom to marry"? How does Obergefell relate to those two constitutional protections? This Article argues that the Obergefell decision reflects an important advance for some aspects of marriage equality and the freedom to marry, (14) while also insufficiently developing the freedom to choose to marry. Nonetheless, the roots of the freedom to choose to marry can be found in the precedent underlying Obergefell as well as in some aspects of the decision itself.

"Marriage equality" should be understood to have three interrelated aspects. (15) First, the two members of the couple (16) should be entitled to have a relationship of equality rather than one of domination and submission. (17) As Justice Ginsburg mentioned during the oral argument in Obergefell, the elimination of laws like Louisiana's "Head and Master" rule (18) helped to change marriage so that it would no longer be a state-mandated "relationship of a dominant male to a subordinate female." (19) Second, marital and nonmarital couples should be treated with equal dignity and respect so that access to important societal benefits and privileges, such as adoption or contraception, are not dependent on a couple's marital status. (20) Third, individuals should be able to enter into marriage on a nondiscriminatory basis, as reflected in the Supreme Court's historic decision to overturn anti- miscegenation statutes. (21) The courts have also referred to this third aspect of marriage equality as the "freedom to marry" (22) or the "right to marry," (23) emphasizing that characteristics like the race of one's partner should not serve to exclude one from the institution. While the Obergefell decision undoubtedly furthers the third aspect of marriage equality, by allowing couples to enter the institution without regard to their sex or sexual orientation, (24) it does not sufficiently recognize and protect the first two aspects of marriage equality. Without all three aspects of marriage equality, this Article argues that individuals will not have the freedom to choose to marry.

By tracing the development of the freedom to marry (or what the Obergefell Court interchangeably describes as the "right to marry" (25)), Part I of this Article argues that the freedom to marry should be understood to include the freedom to choose not to get married, (26) just as the freedom to choose to use contraceptives (27) or have an abortion (28) also includes the freedom to choose not to get sterilized, (29) not to have a compulsory caesarean section, (30) as well as to go to term with one's pregnancy. (31)

Part II relates the first aspect of marriage equality--the elimination of the subordinate treatment of women within marriage--to the Obergefell decision. Despite the elimination of coverture, this Article argues that marriages between a man and a woman (32) often continue to retain the traditional elements of a relationship between "a dominant male" and "subordinate female." (33) The Obergefell Court's idealistic assertion that marriage offers the "hope of companionship and understanding" (34) ignores the evidence that women, within marriage, are disproportionately the individuals who provide care to others while also disproportionately facing the threat of violence in their intimate lives. (35) This Article argues that the Obergefell decision is neither the result of, nor likely to lead to, improvement in the first aspect of marriage equality unless the Court recognizes the importance of women having a more genuine choice whether to enter (or leave) this institution. (36)

Part III relates the second aspect of marriage equality--the equal treatment of marital and nonmarital relationships--to the Obergefell decision. The Obergefell Court's emphasis on the importance of children being raised by married parents reflects the historical stigma against nonmarital parents and their children. The Court's decision might contribute to that stigma by facilitating states' refusals to allow unmarried couples to adopt children. (37) Further, the Court's emphasis on the financial benefits that are accorded marital couples, in contrast to those offered nonmarital couples, reflects the historical discrimination against nonmarital couples. The Court's opinion might facilitate the deepening of that disparity by emboldening entities to eliminate the few benefits they currently offer nonmarital couples. (38) In order to further the second aspect of marriage equality, the Court needs to question why certain rights and privileges, such as adoption and financial benefits, are limited to nonmarital couples, and avoid a simplistically idealistic portrayal of marriage under which government is allowed to reflexively limit those benefits to marital couples.

Part IV concludes by suggesting that we could better attain genuine marriage equality by insisting that the freedom to choose to marry requires the state to develop a more neutral legal stance towards the institution of marriage. Such a stance might improve the institution of marriage itself, by encouraging people to enter it for love and companionship rather than instrumental benefits, while also respecting the freedom of individuals to share love and companionship without entering the institution of marriage. By exploring sociological evidence from one country that has developed a more neutral stance towards marriage, this Article suggests that such an approach is both attainable and beneficial. The freedom to choose to marry is a possibility under conditions of genuine marriage equality.

1. From the Freedom to Marry to the Freedom to Choose to Marry

   How do we can truly achieve genuine marriage equality and the freedom to choose to marry? One step forward is to build on the Obergefell Court's observation that the freedom to marry is both an equality interest and a liberty interest--one that we can genuinely choose whether to accept. Close examination of some of the liberty and equality case law underlying the Obergefell opinion can provide us with the foundation to build a genuine freedom to choose to marry.

   1. Pierce v. Society of the Sisters: The Freedom to Choose Education

      The foundational, liberty case law is based on a freedom to choose to engage in various protected activities, as reflected in the 1925 decision in Pierce v. Society of the Sisters, (39) which was discussed in the Obergefell opinion. (40) Oregon's 1922 state initiative to amend the state's Compulsory Education Act required parents to send their children to a public school, thereby precluding them from attending plaintiff's parochial school. (41) The plaintiffs argued that the statute "conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training." (42) The Supreme Court accepted this argument, finding that the "fundamental theory of liberty" prevents the "general power of the state to standardize its children by forcing them to accept instruction from public teachers only." (43) The Supreme Court affirmed the injunction against enforcement of the statute that had been entered by the lower courts. (44) As a result of this injunction, no one would be forced to send his or her child to a nonpublic school but the option of such education was retained by the Court's liberty-based decision. Thus, properly understood, Pierce protected the freedom of parents to choose a private or public school for their children's education.

   2. Griswold v. Connecticut: The Freedom to Choose Contraceptives

      In overturning a state statute that precluded married couples from using contraceptives, the Supreme Court built on the Pierce decision in 1965 in Griswold v. Connecticut, (45) The Griswold Court described Pierce as standing for the proposition that "the right to educate one's children as one chooses is made applicable to the State by the force of the First and Fourteenth Amendments." (46) It found that Connecticut law interfered with the "zone of privacy" and had "a maximum destructive impact upon [the marital] relationship." (47) Unfortunately, the Court did not explain how the law achieved this "maximum destructive impact" but one might surmise that the Court believed the law impinged on a married couple's decisions whether or not to seek to have children...