U.S. Intellectual History Blog

What the Obergefell Decision Could Have Been

Because there is already a great deal of excellent commentary on Obergefell v. Hodges, the landmark Supreme Court case decided last week, there is not much I can add of originality or value. (And there is even coverage of the decision already on this blog: Claire Potter has written an inspiring and historically rich essay on Obergefell which appeared here yesterday.) But there is an aspect of the majority decision, which, like United States v. Windsor (2013) and Lawrence v. Texas (2003)—previous Supreme Court cases significant to Obergefell—was authored by Anthony Kennedy, that I think deserves some greater discussion than I have yet seen. Or perhaps my point here is naïve or ill-formed and someone can set me straight.

At any rate, what I wondered while I read Kennedy’s opinion in Obergefell is what the other Justices in the majority thought of Kennedy’s reasoning and the general drift of his argument. I was especially struck—as were many other readers—by Kennedy’s line “Marriage responds to the universal fear that a lonely person might call out only to find no one there.” For an opinion fixated on questions of personal dignity, I wondered about the soft denigration of the non-married life contained in this encomium to the marital state, and I further wondered if Kennedy—who must have known that he would be joined in his opinion by the widowed Ruth Bader Ginsberg, the divorced (and unremarried) Sonia Sotomayor, and the single Elena Kagan—was being obtuse or callous in writing in this manner. It made me deeply desire either a concurring opinion by one of these women or even that Kennedy had not been the one tapped to write for the majority. Why not have the case for the constitutionality of same-sex marriage made by one who might share an appreciation of what it feels like to be excluded from the full suite of matrimonial privileges and experiences? Or, to take it another direction, who might see the constitutionality of same-sex marriage as a rather ordinary matter of plain equality rather than burden it as the crowning glory of personhood and citizenship—marriage as not just a fundamental right but a practically compulsory one—the kind of treatment I feel Kennedy gave it.

A few thoughts more: Kennedy’s opinion, as has been widely and happily noted, leaned quite heavily on the OAH’s amicus brief, and particularly on Nancy Cott’s history of marriage. But I was interested to see that two of the cases which Kennedy also made extensive use of in formulating his case for same-sex marriage’s constitutionality were—unlike Loving v. Virginia (1967) and Lawrence v. Texas—never mentioned in either the OAH brief or (as far as I can tell) in Cott’s book: Zablocki v. Redhail (1978) and Turner v. Safley (1987). This is not surprising once one reads the OAH brief, but it does tell us something about the general drift of Kennedy’s reasoning. For what these two cases have in common is that they are (like Loving, actually) about non-same-sex marriage[1] and (unlike Loving) more specifically about a man’s right to marry. Zablocki decided the question of the legality of state restrictions on the right to marry if one was behind on child support; Turner rested on the question of whether prisoners could be denied the right to marry. (Although technically gender-neutral, the practical effects of these rulings concern situations in which men rather than women are preponderantly to be found.)

It may be churlish of me to insist that we recognize this deeper structure of Kennedy’s opinion, but—let’s be blunt—it’s a solemn reinforcement of the most reactionary and patriarchal interpretation of marriage: as the taking by one person of another to wife or, in more gender neutral language, to wed. This is the sense of the traditional phrase “man and wife”—a basic inequality encoded in the most basic sentences of the traditional wedding ceremony, “I now pronounce you man and wife,” a phrase generally succeeded by the equally patriarchal “You may now kiss the bride.” (And echoed in the common Jewish ritual of the husband breaking a glass after the vows—a ceremony which I have to admit I performed at my wedding, as it was too fun to give up.) For Kennedy, this is the fundamental right that must be defended—the right of a person to take another person to wed. This operation may be reciprocal, but even such a reciprocal understanding of marriage obstructs a more radically egalitarian notion—marriage not as a taking but as a joining.

Marriage as an act of taking someone to wed is Kennedy’s favored notion, as we see when he tells the histories of some of the petitioners. Kennedy highlights four of the petitioners’ stories in his opinion—the eponymous James Obergefell, April DeBoer and Jayne Rowse, and Ijpe DeKoe. Obergefell’s tragic story of being denied the right to appear as surviving spouse on his deceased husband’s death certificate naturally emphasizes one of the partners over the other (4-5); DeKoe’s story, which fortunately has a much happier ending, has less reason to do so, but Kennedy concludes his brief narration by cutting out DeKoe’s partner, Thomas Kostura, from the center of the story. Kennedy hails DeKoe’s military service and writes, “DeKoe, who served this Nation to preserve the freedom the Constitution protects, must endure a substantial burden” (5-6). Evidently his partner’s burden is subsumed under DeKoe’s like a form of neo-coverture. (It is worth noting that it is only the lesbian couple who is granted equal footing in Kennedy’s narration.)

At any rate, it is in Kennedy’s buried logic of marriage as a fundamental right to take another person to wed—the same vision encoded in Zablocki and Turner—that illuminates the brilliance of the Loving decision, which I believe insists upon a more egalitarian vision of marriage as an act of union. Let me quote the last two substantive paragraphs of the majority decision, authored by Chief Justice Earl Warren:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

The language of “man” here—“free men,” “basic civil rights of man”—is clearly meant to be read as a forcefully gender-neutral universalism, for what is stressed by the first sentence is that both the Lovings are deprived of liberty and in other instances the actually gender-neutral language of “person” and “individual” is used and “all the State’s citizens” invoked.

There are two more interesting elements in the latter paragraph that I want to point out: first, that the Loving decision explicitly affirms a “freedom to… not marry;” and second, that (pace John Roberts’s petty and venomous dissent) this key paragraph in which Loving attests to marriage as a fundamental right (actually a “fundamental freedom”) contains no language restricting marriage to people of different sexes. There is nothing in Loving aside from quotations of Virginia statutes (which the opinion is in the process of overturning) that insists upon a definition of marriage as between one man and one woman. That is, I think, significant.

[1] The apparent antonym to same-sex marriage would be opposite-sex marriage or perhaps different-sex marriage; the former is unacceptable because it assumes a sexual binary that has been convincingly called into question, but I haven’t heard the latter. Does anyone know the preferred terminology?

6 Thoughts on this Post

  1. Andy, this is a terrific post. One of the best I’ve seen. The second graf in particular: I hadn’t thought about Kagan, Sotomayor, or Ginsburg in this respect, but you’re absolutely right. Also, what I did think when I read that statement re loneliness: oh, what Vivian Gornick could do with that sentence! Also, your point about marriage as a taking: excellent! Your post makes me wonder whether that has anything to do with the revival on the right of the Takings Clause. I don’t know what Kennedy’s specific stance is on that — I suspect he’s pretty much down the line on it — but it’s interesting that the Clause didn’t have the same kind of status that it does today when Loving was decided. I’m speculating here, obviously.

    • Thank you! I hadn’t considered a connection to the Takings Clause–that’s a brilliant connection, but I’m afraid I’m not nearly competent to try to follow up. Maybe someone else can in the comments here?

      Also, I need to read more Vivian Gornick!

  2. I echo Corey’s praise, Andy. Question: Do we know if Justice Kennedy has ever elaborated elsewhere on his view of marriage as a taking? Has he ever emphasized it as a mutual takings? And has he ever corrected the gender imbalance that you mention, in those man-wife passages? – TL

  3. First, I agree with those who have praised this post, although I’ve read it through only quickly.

    Second, I must confess that I have not brought myself to actually read Kennedy’s whole opinion, so I’d missed that “universal fear” line. However, I had gotten the general drift of Kennedy’s opinion even without reading the whole thing, and I had wondered about Kagan in particular, and to a lesser extent Ginsburg and Sotomayor (who I’d forgotten or hadn’t known was divorced) in terms of their signing on. I can only speculate that the majority wanted to present a united front and decided to let Kennedy write more or less what he wanted and not muddy the water with concurrences. How Kennedy could write some of that stuff realizing *who* would be signing onto his opinion, though, is indeed something of a mystery.

    Last note, a somewhat minor point but interesting: At one point in the opinion Kennedy takes a ‘biological essentialist’ view of sexual orientation, calling it “immutable.” In support he cites an amicus brief filed for the American Psychological Assn. and American Psychiatric Assn. But when one looks at that amicus brief one sees it does not use the word “immutable” but rather uses somewhat more nuanced language (“generally not chosen,” “highly resistant to change.”) Why Kennedy switched this to “immutable” I don’t really know, since it was unnecessary and is not in fact what the brief that he cited says.

  4. P.s. At the risk of going out on a limb (and I’m neither a close student of, nor an expert on, the Supreme Court), I wonder whether a review of Kennedy’s opinions would reveal a fondness on his part for unnecessarily grandiose-sounding statements. (That’s not, I gather, the main problem with his Obergefell opinion but it’s in the list of problems.) I’m thinking specifically of Planned Parenthood v. Casey (1992), in which the governing plurality opinion (jointly authored by Kennedy, Souter, and O’Connor) contains this: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” I don’t think O’Connor wrote that line and while it could have been Souter, I suspect it was Kennedy. But I don’t know.

  5. Hi Andy- thanks for this great post! Incidentally, the Zablocki v. Redhail decision is pretty interesting beneath the surface, because the man involved was Native American, but that never gets mentioned in the opinion. I recently met a UW-Madison law professor who has dug into the original case records & found the parties to interview for a forthcoming book chapter on the case… perhaps something to watch for. It sounds like it will be very interesting! In the meantime, here’s the abstract: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2369948

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