She said yes.

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Marriage Is a Right, Not an Obligation

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Justice William O. Douglas, who wrote the most famous paean to marriage in Supreme Court history before Friday, loved marriage so much he did it four times. Justice Anthony Kennedy, who wrote the court's landmark opinion in Obergefell v. Hodges has been married to the same woman for more than 50 years -- he, too, seems profoundly committed to the institution’s importance.

QuickTake Gay Rights

Maybe a little too much. Amid the justifiable praise for Kennedy’s historically significant opinion establishing a constitutional right to gay marriage, there's room for a small note of skepticism about the way his rhetoric made marriage into a kind of summum bonum or ultimate good of human existence. Sure, marriage is a crucial human social institution, and the court was certainly correct to hold that everyone should have a fundamental right to choose his or her partner regardless of sex. But in the course of declaring marriage to be a fundamental right, Kennedy went well beyond stating that the right to choose a partner is the key. For him, the status of being married was at least as important -- maybe more so.

To understand why the shift was significant, it’s worth taking a moment to see how Kennedy got here. Before Friday, two important themes could be seen in his gay-rights decisions. The first was the theme of equal dignity, which primarily stood for the proposition that the government couldn't detract from the equal dignity of gay people by denying them rights available to straight people.

The constitutional ideal of equal dignity got its start in the 1996 case Romer v. Evans, where Kennedy struck down a Colorado constitutional amendment that raised the bar for gay people to get state law protection. It continued in United States v. Windsor, in which he struck down the Defense of Marriage Act.

Kennedy's second great theme is based not on equality, but on autonomy: the classic liberal or libertarian individual rights to make free choices. Originally, Kennedy's jurisprudence of autonomy came from the context of reproductive freedom. His most important statement came in Planned Parenthood v. Casey, the 1992 case refusing to overturn the abortion right originally framed in Roe v. Wade. There Kennedy, writing with Justices Sandra Day O'Connor and David Souter, announced a fundamental individual right to decide “matters, involving the most intimate and personal choices a person may make in a lifetime.” Such “choices,” he said, were “central to personal dignity and autonomy, [and] are central to the liberty protected by the Fourteenth Amendment.”

Kennedy drew on this concept of the autonomous freedom to choose in Lawrence v. Texas, which struck down anti-sodomy statutes. His idea was that the choice of an intimate sexual partner was itself a protected autonomous choice necessary to form a life of dignity.

Kennedy relied on both equality and liberty in Obergefell, the gay marriage decision. But he did much more than simply repeat that denying gays the right to marry violated equality, and that marriage is a matter of fundamental choice. Instead, he made a rhetorical choice to emphasize the uniqueness of the marital bond. This move wasn’t legally necessary.

“The nature of marriage,” he declared, “is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” He went on to say that marriage is a “two-person union unlike any other in its importance to the committed individuals.”

Kennedy quoted Douglas’s famous observation on the nobility of marriage. But he went beyond Douglas in saying that “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.”

This unnecessary account of the nature of marriage and of its relationship to a “universal fear” of loneliness went too far, in my view. Although Kennedy surely didn't intend it, his rhetoric has the effect of devaluing the fullness of lives conducted outside the bounds of marriage.

People could, after all, commit to each other in friendships that rival the importance of marriage. Until very recently, many thinkers believed that friendship offered a stronger bond than marriage. Married couples who refer to their spouses as their best friends are also drawing upon the recognition that friendship might the model for marriage.

What's more, historically there have been many forms of human community that cared for people, from groups of hunter gatherers to close-knit religious communities. Marriage is not necessarily the only solution to the existential problem of loneliness, assuming such a problem even exists.

Turning to procreation, Kennedy was careful to note that marriage has other purposes than children. Yet he also said of gay couples that “without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser.”

Of course, if gay couples were denied the right to marry, such stigma might well result from the fact of the denial. But Kennedy’s rhetoric all but ignored the fact that many children are born out of wedlock, and that many people, including parents, choose not to marry -- or choose to continue parenting after divorce.

Finally Kennedy, quoting Tocqueville, said that marriage was crucial to the American “social order.” In the history of American ideology, this is certainly true. But the U.S. also has a more complicated social reality, in which marriage hasn't been universal and hasn't been determinative to social inclusion. The 19th and early 20th centuries saw the election of bachelor presidents.

The peak of marital ideology is sometimes imagined to be the 1950s. The Obergefell opinion shows that ideology still lives, at least in the mind of Anthony Kennedy. The right to marry is fundamental, and equality demands that marriage be available to all. But it's still a choice -- and choices only gain validity and meaning if their alternatives are also viable.

  1. Thus Douglas: “We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net