In looking through the Supreme Court’s opinion on same-sex marriage, I’m trying to figure out how their reasoning compares to my own posting in support of same-sex marriage.
The majority point out that
the annals of human history reveal the transcendent importance of marriage. [Angelika Graswald would agree, but perhaps for different reasons]
The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time.
A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.
Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser.
Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order. Alexis de Tocqueville recognized this truth on his travels through the United States almost two centuries ago: … In [an 1888 case] the Court echoed de Tocqueville, explaining that marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress.”
These aspects of marital status include: … child custody, support, and visitation rules [Bizarrely included because the federal Family Support Act of 1988 explicitly require that states make it just as profitable to collect child support after a one-night encounter as after a 10-year marriage; every jurisdiction nationwide also has the same rules for custody and visitation regardless of the existence of a marriage between the litigants; see the “History of Divorce” chapter.]
Roberts notes that
[Marriage] arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.
Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.
As the majority notes, some aspects of marriage have changed over time. Arranged marriages have largely given way to pairings based on romantic love. States have replaced coverture, the doctrine by which a married man and woman became a single legal entity, with laws that respect each participant’s separate status. Racial restrictions on marriage, which “arose as an incident to slavery” to promote “White Supremacy,” were repealed by many States and ultimately struck down by this Court. [Left out one big change: marriage can be dissolved any time by one party unilaterally]
Scalia says
Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.
Thomas restricts his opinion to narrow legal questions and doesn’t shed any light on what he might think of as “marriage.”
Alito points out that
If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women. This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage.
Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.
Except to a limited extent for Scalia and Alito, the Supreme Court in making this ruling inhabited a parallel universe in which no-fault divorce did not exist, in which states did not provide multi-million-dollar financial incentives for breaking up a child’s home (see Real World Divorce), and in which certainly nobody would get married in order then to pick up a green card through the Violence Against Women Act. Many of the quotes are from the 19th century. The Supreme Court exhibits a lordly indifference to family law and to their brethen who are divorce litigators. The word “divorce” does not occur in the opinion (except as part of a cited book title), though it is the only time that courts get significantly involved as a result of a marriage. The word “alimony” does not occur. The multi-billion dollar child support industry is mentioned just once, without a note that Census data show that 93 percent of the recipients are of one gender or that guidelines make it twice as profitable to have three children with three different co-parents compared to having three children with one sex partner. If there are any Americans who get married for financial reasons, or with an eye toward a near-term divorce lawsuit targeting their spouse’s premarital property and future income, we can’t learn of their existence from reading this opinion.
The Supreme Court has thus invited all American couples, regardless of their birth genders or current genders, to join a 19th century world of “for better or for worse and til death do us part” marriage (chart).
The divorce litigators whom we interviewed were similarly welcoming, but for different reasons (from History of Divorce):
“When I read arguments by opponents of gay marriage,” said one attorney, “I don’t recognize their description of straight marriage as some sort of sanctified institution. With no-fault statutes that kept the old alimony, property division, and child support rules, straight people made a mockery of civil marriage a long time ago. Marriage today is a way for a smart person with a low income to make money from a stupid person with a high income. What difference does it make whether the gold digger and mark are of the same sex?”
Readers: What will be the implications of this decision, aside from the obvious additional marriages and divorces in some of the fringe states? And what’s next for marriage? Can the majority’s reasoning be applied to further expand marriage, e.g., to polygamous unions?
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