Last year, the U.S. Supreme Court declined to hear an appeal from Kim Davis, the Kentucky clerk who claimed her religious convictions prevented her from issuing marriage licenses to same-sex couples seeking their right to marry under Obergefell v. Hodges. Justice Clarence Thomas used the occasion to criticize the Court’s earlier ruling in Obergefell that same-sex couples have a fundamental right to marry: “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the court has created a problem that only it can fix.”
Every wedding I have attended did in fact begin with a religious ceremony performed by a religious cleric. Yes, I thought, marriage is religious in nature, like a baptism or bat/bar mitzvahs. And the state cannot determine rights or benefits on the basis of religion. Kim Davis shouldn’t be issuing marriage licenses to anyone, gay or straight, because marriage should be delegalized. Everyone should be allowed to marry according to their personal beliefs, but no one’s legal rights or privileges should be determined by their marital status. This is how we reconcile the positions of the right and left, and end state-sanctioned discrimination against people who are not married.
In a Harper’s essay titled “The Future of Queer,” Fenton Johnson wrote that, initially, “proponents presented same-sex marriage for what it was: a right-wing initiative whose goal was to enable the Republican grandparents of Peoria to feel comfortable inviting their grandchild’s same-sex lover to holiday dinners…But within the year the spin was changed, as evidenced by my encounter a couple of years later in San Francisco’s Noe Valley with two young, white, conventionally attractive lesbians, who brandished a clipboard and asked whether I was willing to sign a petition to ‘legalize love.’ In two years, the pitch on same-sex marriage had gone from presenting it as a ticket to the status quo — the ultimate insiders’ club — to a way to enable otherwise conventional people to feel they were participating in the romance of revolution.”
The gay rights activists of the 20th Century were treated as deviants, sometimes rejected by their biological families, and they learned to build their own chosen families outside the framework of marriage. They had to search for what love truly meant to them, and grapple with what they were willing to risk for it. They fought for the right of everyone to be accepted and treated as equal, no matter who or how they loved. But the 21st Century solution of gay marriage doesn’t achieve that goal. It lets in a few more people to enjoy the social and legal privileges attached to marriage, but continues to dismiss nontraditional families as invalid forms of love.
What Obergefell did was sprinkle glitter all over discrimination against an increasing number of unmarried people who choose to live alternate lifestyles. The glitter makes it difficult to see the ugly problem of inequality underneath.
I’m not a historian, but it’s probably safe to say that marriage originated as a way to control women, property, and domestic labor. Scripted gender roles continue to be a problem in heterosexual marriages. Some women who can easily support themselves prefer a “living apart together” relationship where they choose not to cohabitate with a male partner, eliminating mismatched expectations regarding division of housework and perhaps also gaining greater intimacy — it might be easier to feel close to someone when you have outside experiences to share and don’t spend time together arguing about money or chores. On the other hand, people who can’t afford to live alone may find themselves sharing a home for many years with platonic friends and come to rely on them for companionship and care traditionally found in a marriage. Some people discover that sex, love, and romance are separate things not necessarily coinciding forever in one relationship, and find that ethical non-monogamy works well for them. Some asexuals prefer romantic relationships where sex is not a priority, whereas some aromantics enjoy sexual relationships not leading to life partnership. In the movie Dick Johnson Is Dead, the documentary filmmaker lives with her aging parent next door to her children and their gay fathers.
Despite the increasing proliferation of new ways to live and love, legalized marriage continues to assign rights and benefits based on whether a person is married. There are more than 1000 statutory provisions in which marital status determines a person’s benefits, rights, and privileges. Contrary to the claim that gay marriage would “legalize love,” marriage is about economics and social status, not love. People have always loved even when it was illegal, and they continue to love in a myriad of ways not protected by the law. But it is wrong for the state to continue to favor one particular type of sexual, procreative relationship over all other kinds of love. It’s the only kind of discrimination that the public still thinks is justified, and it should stop with the delegalization of marriage.
By stepping away from legislating marriage and instead recognizing marriage as a religious or cultural decision between consenting adults, the state would signal that there isn’t one right way to love. Although arguments have been made that children of married parents do better in life, obviously having two or more of any kind of loving adult is better than one or none. Two loving single aunts raising a child, for example, would be better than two abusive married parents. When children of unmarried parents do have worse outcomes, often it is because the parents don’t have adequate resources (even if they were to marry), and governments and employers exacerbate the problem by providing less resources to people who aren’t married, creating a self-fulfilling prophecy.
In the 2014 movie Maleficient, the eponymous character is an orphaned fairy and the friend of a poor boy named Stefan, who dreams of being king. When Maleficient grows up, she becomes a powerful protector of the forest, and a jealous monarch, on his deathbed, offers his kingdom as a reward for destroying her. Stefan seizes the opportunity by slipping a drug in Maleficient’s drink and cutting off her wings while she is unconscious. When King Stefan’s first child Aurora is born, an angry Maleficient puts the famous Sleeping Beauty curse on the baby, dooming her to a deathlike sleep when she turns 16. At first Maleficient lurks around Aurora out of curiosity, but gradually she starts to love and protect the child, who thinks Maleficient is her fairy godmother. When Aurora falls into her deathlike sleep, the “true love’s kiss” that awakens her comes not from a male suitor, but from Maleficient herself. It’s a surprising narrative that recognizes true love does not have to be romantic, sexual, procreative, or even technically familial. Our children need to hear more stories like that, which acknowledge people’s complex backgrounds and motivations and the unexpected paths they take to love.
Perhaps asking for the delegalization of marriage is as far-fetched as a Disney fairy tale right now. An incremental change like gay marriage is much easier for people to accept than dismantling an unfair system. But we cannot have equality unless we first envision it and ask for it, so I am putting the idea out there. If you think it has merit, I urge you to amplify the idea by sharing it.
One obstacle to using the First Amendment for greater equality is that, in Reynolds v. United States (1878), the Supreme Court held that religious actions were not extended the same protection as beliefs (so there is no protection for the act of marriage). During an era of violent anti-Mormon sentiment, the Court ruled that a Mormon’s religious belief was not a defense to bigamy: “[p]olygamy has always been odious among the northern and western nations of Europe.” But since 1878, the Court has found in the Constitution many rights that were once considered “odious.” In 2020, Utah passed a law changing bigamy from a felony to an infraction, as the criminalization of bigamy never prevented the practice of polygamy but instead kept women from stepping forward to report abuse. The Reynolds Court asked hyperbolically, what if a religious belief requires human sacrifice? In that situation, just as with domestic abuse, the person who would be harmed has rights that would trump religious liberty, but such is not the case between consenting adults simply pledging commitment to each other. After 143 years, it may be time for the Court to reconsider whether Reynolds was decided correctly. Moreover, the Reynolds precedent does not prevent legislatures from delegalizing marriage to recognize that it is a religious matter, not a civil one.
The personal opinions in this post, and related responses, are not legal advice.