Conservatives have long argued that there is no such thing as “gay marriage”; to call a same-sex relationship a “marriage,” they argue, requires redefining the term from its inherent definition as being between a man and a woman. But in his landmark decision bringing marriage equality to all 50 states, Justice Anthony Kennedy explains exactly how it makes sense to define marriage, and that definition does not preclude same-sex couples.
Rather than trying to “demean the revered idea and reality of marriage,” Kennedy contends, “it is the enduring importance of marriage that underlies” why same-sex couples seek the right to marry. They “seek it for themselves because of their respect — and need — for its privileges and responsibilities. And their immutable nature dictates that same-sex marriageis their only real path to this profound commitment.” In other words, they are not trying to change it; they want it for all of the exact same reasons as other couples.
Likewise, Kennedy points out that marriage itself has changed many times. Parents no longer arrange marriages, marriages are no longer a male-dominated legal entity, and women’s rights brought an end to coverture, as a few examples. These were “not mere superficial changes,” but rather, “they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential.” These new insights have “strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.”
It is from this perspective — that marriage can change and yet is a consistent ideal for families — that he outlines the four principles of his understanding of how marriage is defined.
1. “The right to personal choice regarding marriage is inherent in the concept of individual autonomy.”
Kennedy’s opinion is based on the premise that there is a “fundamental right inherent in the liberty of the person” to marry. That right requires that the person be able to choose who to marry. “This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause.”
To reinforce this point, Kennedy borrowed from the Massachusetts Supreme Court’s Goodridge v. Department of Public Health decision, the first to legalize same-sex marriage. Because “it fulfills yearnings for security, safe haven, and connection that express our common humanity,” the Court wrote in 2003, “civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.”
Kennedy added his own poetic reflection: “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.” Having previously noted that sexuality is “immutable,” Kennedy is inherently rejecting the claim that people who are gay, lesbian, or bisexual have the right to marry because they can still marry the opposite sex. Only having the choice to marry someone compatible with one’s sexual orientation embodies the right to marry.
2. “The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”
While Chief Justice John Roberts worries about polygamy — citing the New York Post — Kennedy is focused on the uniqueness of two-person relationships. The idea of one person making a full commitment to one other person prompts some of his most heartfelt writing:
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.
He also notes that it isn’t just enough that homosexuality is no longer criminal. The Court’s 2003 decision in Lawrence v. Texas “confirmed a dimension of freedom,” he writes, but “it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.”
3. Marriages “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”
Much as he did in the 2013 Windsor decision overturning the Defense of Marriage Act, Kennedy emphasizes the fate of the children of same-sex couples. Noting that “hundreds of thousands of children are presently being raised by such couples” and that “gays and lesbian can create loving, supportive families,” it thus does great harm to deprive them of marriage.
Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.
Kennedy also accounts for how meaningful marriage is for couples who do not or cannot have children. “An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State”; in fact, precedent protects a married couple’s right not to procreate. Childbearing, he insists, is “only one” of many aspects of the constitution marriage right.
4. “Marriage is a keystone of our social order.”
Kennedy’s last point, ironically, pays a bit of tribute to the notion of tradition. Invoking the journeys of Alexis de Tocqueville, he highlights how marriage has long been “so much respected” in America, an idea that persists such that “marriage remains a building block of our national community.”
Marriage is not just about a couple’s commitment to each other and their family, but also society’s pledge to support that family, “offering symbolic recognition and material benefits to protect and nourish the union.” The benefits and responsibilities that states confer to marriage are part of its “fundamental character,” making it an institution “at the center of so many facets of the legal and social order.”
There’s no compelling reason to deny same-sex couples this “constellation of benefits.” “This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives.” This teaches gays, lesbians, and bisexuals that they are “unequal in important respects.” The country must recognize that “laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”
And Kennedy remains unfazed by opponents’ argument that marriage equality somehow creates “a new and nonexistent ‘right to same-sex marriage.’” Referring back to other decisions that have granted access to marriage to other groups, he outlines the consistent trend that Obergefell follows:
Loving did not ask about a “right to interracial marriage”; Turner did not ask about a “right of inmates to marry”; and Zablocki did not ask about a “right of fathers with unpaid child support duties to marry.” Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right.
Membership in the institution of marriage may look a bit more diverse henceforth, but that doesn’t mean the institution of marriage has changed. It’s not going to somehow hurt the institution or discourage couples from marrying. Kennedy, ribbing opponents, observes, “Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so.” Instead, these cases are only about “the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.”
Autonomy. Companionship. Family. The Social Good. These are the concepts that define marriage. As Kennedy concludes, “it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family” and in marriage, “two people become something greater than once they were.” To achieve “equal dignity in the eyes of the law,” same-sex couples must have access to that institution.