On June 26, 2015 the Supreme Court decision in Obergefell v. Hodges added the United States to a growing list of nations that provide equal marriage rights to same-sex couples. In an impassioned majority opinion by Justice Anthony Kennedy, Obergefell overturned remaining state bans on marriage for same-sex couples and required all states to recognize marriages legally performed elsewhere. (I am among the historians of marriage whose amici curiae brief, arguing for marriage as a historically variable institution, was cited in Justice Kennedy’s opinion.) Advocates of marriage equality have justly hailed the decision as a victory for LGBT rights.
Marriage equality is without question a watershed moment in the struggle for LGBT rights with profound consequences for same-sex couples and their families. But the fight for sexual equality is far from finished.
My concerns originate with the way Obergefell heightens the importance of marriage as a pathway to full citizenship and privileges a narrow ideal of sexual intimacy. Justice Kennedy’s majority opinion describes marriage as the preferable form of intimate relationship, “a two-person union unlike any other in its importance to the committed individuals,” and it locates emotional and sexual intimacy within the bonds of marriage: “[Marriage] offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.”
That vision of marriage reflects decades of changes in American law, religion, and public life that have heightened the importance of marriage and privileged marital sexuality. Since at least the 1920s and 1930s, and with increasing intensity after World War II, marriage became intrinsic to American citizenship and religious life. Along the way, the state deepened its investment in heterosexuality. Despite these efforts, over the last half century Americans have become increasingly more likely to have sex and raise children outside of marriage, and the marriage rate has fallen to historic lows. The result is a legal and political system, deeply influenced by American religious life, that privileges marriage while ignoring or denigrating larger questions about sexual freedom and non-marital family relationships.
First, the centrality of marriage for citizenship:
Marriage’s public importance expanded rapidly in the twentieth century. Unlike most Western nations, marital status determines how the United States government apportions federal income tax obligations and how it determines eligibility for benefits ranging from military survivor benefits to old-age insurance. Obergefell affirms marriage as a central mechanism for accessing citizenship rights in the United States. If anything, Justice Kennedy’s elegiac descriptions of “the transcendent importance of marriage” amplify marriage as the cornerstone of American citizenship. Yet that celebration of marriage as a benevolent institution overlooks centuries of feminist critique of married women’s subjugation and ample documentation of marriage’s gendered inequalities. To this day, marriage remains a liability for professional American women’s careers but a boon to men’s. Precisely because of the rights and obligations that inhere in American marriage, it remains an incomplete and often problematic pathway to equal citizenship.
Moreover, because less educated, lower-income people and people of color enter marriage at ever-declining rates, marriage is becoming an engine of income inequality and white privilege. While the Obergefell decision was essential to creating legal mechanisms for same-sex couples in the United States to access marital rights, the privileging of marriage within American citizenship rights further marginalizes people who remain unmarried for a variety of personal or economic reasons. Feminists and others on the left have seized upon the conservative elements in Obergefell, which celebrate marriage at the expense of a vision of citizenship that would encompass single people, cohabiting couples, and innumerable family formations that exist outside of the two-partner marital model.
Second, American religion’s investment in marriage:
Religion has played a complex role in sanctioning American marriages, especially since the mid-twentieth-century. After World War II, many religious leaders identified the celebration of marriage as a means of asserting their authority. Ministers, priests, and rabbis developed marriage education programs, required premarital counseling before officiating at weddings, and established marital support programs at the local and national levels. As a consequence, marriage grew increasingly important in American religious life. The rich history of liberal religious support for reproductive rights since the 1960s further shows that religious support for abortion access and contraception overwhelmingly described reproductive healthcare as a boon for marital stability and family cohesion.
By the 1980s and 1990s, American religious denominations split — just as the American electorate did — on issues related to LGBT rights, reproductive rights, and same-sex marriage. Yet most religious leaders on all sides of the issues agreed that marriage was fundamentally important. Religious arguments for and against marriage equality generally hewed to a conservative idea: that the married, nuclear household nurtures morality and stabilizes the community. Religious organizations that celebrate marriage equality, in other words, have done so by reiterating long-standing ideas about marriage’s intrinsic value. This institutional investment in marriage continues to shape our national debate. Moral arguments for and against marriage equality amplified the public conversation about marriage equality in the run-up to Obergefell. The decision continues to inflame faith-based understandings of marriage as a sacred or hallowed relationship (now most often in “religious liberty” arguments).
Third, the American state’s investment in heterosexuality:
Beginning in the 1930s, policymakers and bureaucrats began to define American citizenship as heterosexual in increasingly explicit terms. As early as the 1930s, New Deal programs scrutinized the sexual behaviors of unemployed, single men for signs of “deviance.” By the 1950s, U.S. immigration policy banned homosexuals from entering the country. In mid-twentieth century America, heterosexuality was explicitly hailed as a key to marital success, mental health, and a stable citizenry.
In the wake of a newly radicalized gay rights movement in the 1960s and 1970s, civil rights litigation, legislation, executive actions, and shifts in military policy began to erode many discriminatory policies. A few municipalities and states passed antidiscrimination statutes in the late 1970s, provoking a fierce backlash from conservatives like Anita Bryant. The federal government lifted its bans on LGBT civil servants in 1975. Other gains have been much more recent: lesbian and gay people have been able to serve openly in the U.S. military only since 2011.
Still, heterosexuality remains privileged. Neither the federal government nor the legislatures in 29 states have yet banned employment discrimination on the basis of sexual orientation or, in 32 states, of gender identity. Moreover, the state remains invested in a very particular kind of sexuality — that within marriage. As the ongoing battles over reproductive rights demonstrate, religious arguments persist in shaping personal freedoms in the United States. The United States has ceded some ground in the state’s investment in heterosexuality, but it has not given up on regulating sexual norms. And indeed, the state’s gradual (if still incomplete) disinvestment from heterosexuality has raised the stakes for those segments of American religious life that continue to prize heterosexual marriage above all other forms of relationship.
The exclusion of same-sex couples from marriage was an outrage against equality, precisely because so many fundamental rights and privileges of citizenship flow through marriage, and because marriage remains a privileged form of family recognition. The success of the marriage equality movement is undeniable and crucially important. Yet while Obergefell questions the rationale for privileging heterosexuality in American law and policy, it intensifies the problematic American celebration of marriage. A victory for LGBT rights, Obergefell falls short of a fuller vision of equality.