Obviously the Supreme Court’s ruling on same-sex marriage provides a lot of material for discussion. I am still digesting it (not having read the dissents yet), but one thing stands out to me from my reading of Justice Kennedy’s majority opinion. The Court’s argument here, and some of the past precedents to which it refers, are helpful in tracing how modern American society has changed its understanding of the nature of marriage. As most people who have followed this argument realize, the rise of same-sex marriage is related to a much bigger change in how society views marriage that has been going on for some decades. Kennedy’s opinion offers some material for understanding that change.
One might characterize the change in the following way. Marriage used to be understood primarily as a duties-based social institution, while now it is viewed much more as a rights-based individualistic institution. In the old days, marriage had a given nature that was linked to work that needed to be done on behalf of society as a whole, and it was thought of primarily in terms of the duties one undertook to perform in getting married. Today it is understood more as a way for individual adults to express their subjective desires, and so the rights of the individuals who want to enter into marriage take center stage.
The latter understanding shows up in the Court’s opinion both in some of the specific precedents it cites, but also in its big-picture presentation of marriage throughout.
In his opinion for the Court Kennedy refers to some decisions from the 1970s in which the Court struck down laws restricting the ability of people to enter into a government recognized marriage. In one case the law prohibited a man behind in his child support payments from getting married, except in certain cases that he might take to a judge. In another the law prohibited convicted criminals serving prison time from getting married.
I am not writing here to defend those laws, but they are interesting in that they seem to be based on some idea of marriage that elevates certain duties. In the first case, the law is saying to the prospective husband: you are not meeting your current obligations to your existing children, so we are not permitting you to take on new obligations to some woman who is not the mother of your children. In the second case, the law seems to be saying that a man in prison is in no position to take on the obligations that go with being a husband and, potentially, a father. In both cases the Court struck down the laws, apparently on the view that marriage is more about the right to get married because you want to than about the expectation that you will perform any specified duties.
And this thinking appears as well in the Court’s general presentation of marriage’s place in our culture. It is interesting to note that Kennedy’s language echoes that of the defenders of marriage as a union between a man and a woman: he, like they, continually recurs to the idea that marriage is foundational to our civilization. But he draws a completely different lesson from this idea. The defenders of traditional marriage argued that because it is fundamental to our society, it should not be tampered with. Kennedy argued that because it is fundamental to our society, everybody should have an equal right to enter into it.
All of this, of course, has important implications for how we view civilization itself. Is it something precious but fragile, the maintenance of which requires individuals to conform themselves to certain pre-existing roles and to act out certain pre-existing duties? Or is it primarily just a platform for rights understood as the enacting of the subjective desires of individuals? The Court comes down more in favor of the latter view than the former.
No one can say for certain which is the correct view of society, because nobody would want to affirm either without qualification. Not even the most tradition-minded defenders of marriage on the old view would want to go back to times when people had almost no choice in relation to marriage or anything else, when individuals primarily understood themselves to be just cogs in the wheels of society. At the same time, not even the most radical advocates of transforming marriage would want to go all the way and say that there is nothing to society but the unconstrained rights of individuals, since on that view it is hard to see how society could survive.
We have, however, pushed the latter view–the individualistic, rights based view–further than has any society so far. We are in uncharted waters.