Was Obergefell inevitable? – and what next?

Last updated on: July 3, 2015 at 9:05 am by Jane the Actuary

Was Obergefell inevitable? – and what next? 2015-07-03T09:05:30-06:00 Jane the Actuary

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Was it simply inevitable that the Court would have decided Obergefell as it did?

Three thoughts:

1) We talk about Kennedy and his opinion and its lack of substance, and feel as if the decision hinged on the personal opinion of one man. But what would Ginsberg’s opinion have been? I can picture it now, especially given her fans who portray her as a crusader for justice of rock star proportions:

Every right-thinking person knows in their gut that same-sex couples are just as loving as opposite-sex couples. Everyone who knows these couples knows that they’re just as deserving of legal recognition as everyone else — especially because the same-sex couples I know are upper middle class and respectable, but I’ve seen lots of really icky white-trash opposite-sex couples in the news. It is simply common sense that these couples be afforded the full protection of the legal status of marriage across all the states, and hence, it is so ordered.

2) The prime difficulty in the situation prior to last week was the matter of differences between states, and I did pretty much expect that the court would take the half-way position that even a non-SSM state was required by the constitution to recognize a marriage that was validly performed in another state, as a sort of halfway point that on the face of it was bland, boring constitutional law, even as its effect would have been just as far-reaching.

3) So long a the question is “is there a right to marry someone of the same sex?” it’s possible to say, “no, of course not.” In a recent article, the National Review lists all manner of things thatAmericans have tried to claim as “rights” only to lose at the Supreme Court.

But once the majority, or even a large minority, is persuaded that there is such a right (whether based on Kennedy’s fluff about identity and a right to alleviate loneliness — see Ann Althouse’s summary — or a general libertarian approach that human rights are expansive, and only limited by the extent that one harms another), then it’s very difficult to make headway against this construction by raising issues of balancing harms.

In court discussions, and in public debate, the pro-SSM side, and the courts, and others who deem themselves arbiters of the debate have set up a very narrow set of parameters: because denial of SSM usurps a claimed “human right,” any claimed harm must be directly caused by the recognition of SSM, or of a particular SSM, as a legal status.

Hence, harm to children of SS couples is discarded because (a) the children of SS couples are presumed to exist with our without legal recognition, and (b) it’s difficult or impossible to distinguish between the impact of SS parenting, vs. other factors (e.g., prejudice in society). Harm to society more generally isn’t provable because no one can directly separate out and quantify the influence of SSM vs. other societal trends, nor prove a direct harm to a particular individual, or prove that, in a legal sense, there’s been any “harm” at all — such as, for example, with respect to sexual exclusivity, where various SSM advocates openly say that their objective is to move society towards a definition of marriage that has nothing to do with sexual exclusivity. If a generation from now, we’ve reached a point where someone who expects sexual exclusivity from his/her partner is considered to be as inappropriately possessive as the inappropriately-conditioned character in Brave New World — well, we can’t undo things quite so easily, but in the meantime we get laughed out of town.

What about harm with respect to polygamy? Here people feel much freer to bring forth hypothetical and indirect concerns: the young FLDS girl whose leaders redouble the pressure/force they use to compel her to submit, now that polygamy is legal, and the potential, in general, for unhappiness in such marriages both ignore the fact that this is all about adults consenting, or withdrawing their consent in the future. And the hypothetical difficulty low-status individuals would have of finding a mate? That seems just as indirect as the concerns about SSM.

And these harms are genuine, so long as we’re having a discussion about preferred policies. But the key question here, too, will be whether the polys can convince courts that they have a right to legal recognition. If they do convince the “minority that matters” that they have this right — whether because they believe their religion compels them to, or because they have a “polyamorous orientation” or on general liberty grounds — then it seems unlikely that this list of harms could win a balancing test.

What next?

Will gay men take the next step of demanding a “right” to children, and claim that laws against surrogacy and “child manufacture” violate this right? Will religious liberty be imperiled, will public school children be indoctrinated, will Dan Savage convert opposite-sex couples of the virtues of being monogam-ish, will couples everywhere take their cues from this debate that marriage is reserved for when you want social affirmation of your relationship with your soulmate, and when you’re financially set enough for a big reception, maybe after you’ve finished putting your kids through college, or at least daycare?

Dunno.

Retirement experts like to talk about “nudges” — about constructing retirement plans, and their legal structure, in a way that “nudges” people into making the right decisions with respect to retirement planning. With respect to childrearing, we’ve lost that “nudge” towards raising children by a mom and a dad, within a marital commitment. The law is officially indifferent as to how children are raised. That’s the simple reality. What to do, then, with the various studies that say that children do better with a mom and a dad? Are we all just uselessly talking at each other? How do we persuade prospective mothers not to get intentionally (or semi-intentionally) pregnant when there’s no dad in the picture?

Dunno.

Here’s one thought I did have, though: if there is a “right” to be married, then does that open up opportunities for pushing back against welfare benefits aimed (solely) at single mothers? If a single, cohabitating mother is eligible for child care benefits, for instance, that she loses if she marries, is her “right to marry” being taken away from her?

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