A space for sharing stories, ideas, and concerns for the SUNY LGBTQ2AI community.

A Desired Result: A brief reflection on the majority opinion



A Desired Result

On June 26 2015 Justice Anthony Kennedy came through, completing the Lesbian and Gay Rights’ quadfecta. His Obergefell decision came 12 years to the day of Lawrence vs. Texas and two years after United States vs. Windsor. These cases and Romer vs. Evans (1996) have established Justice Kennedy as the swing vote and dominant voice on the court for Lesbian and Gay rights.

His work and his writing in these cases have been criticized by both conservatives and liberals who watch the court. The reporting and commenting on the decision is diverse and thorough. While I am interested in the arguments about activist judges and originalist intentions, others more studied than me can and have written those essays. In this text I mostly want to discuss a few lines in Kennedy’s final section of his decision, but first I can’t help but marvel at the psychic powers Justice Scalia performs in his dissent.

I am amazed by Scalia’s ability to know what people who lived long before he smacked his first gavel knew and thought. Our country has a long history of great thinkers claiming to be able to read minds. Houdini—one of the most extraordinary showmen ever—was a renowned mind reader. One of Scalia’s generational peers the Amazing Kreskin has made a living “knowing” what others know. And, of course, there was Carnac the Magnificent. Unfortunately, Scalia’s ESP is not entertaining.

Scalia’s “mind reading” makes his arguments impossible to counter, which from his perspective I imagine is a good position to have. In his Obergefell dissent he wrote, “But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so” (p. 4). And later, “They [the majority] have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since” (p. 7).

Scalia suggests he has personal knowledge—“we need not speculate”—of how same sex couples felt about marriage in 1868. I find it hard to believe that two men or two women who loved each other would not have imagined a life where they could live without fear of their neighbors and governmental action. Since marriage was such an important institution (as all the judges claim), I have to believe that there was at least one couple who believed they had the right to marry. They probably felt this new amendment guaranteed them the same freedoms as their neighbors and loved ones. To know and authoritatively state—as Scalia does when he writes “by every person alive at the time” —that gay and lesbian lovers at any point in our country’s history—before and after 1868—would not want the same rights and freedoms as straight lovers is “Hubris” and the real “judicial Putsch” in the Obergefell decision.

Those terms were used by Scalia to criticize Kennedy’s opinion. The style of Kennedy’s opinion has concerned many on both sides of the political landscape. However, I want to focus on the now often quoted last paragraph. Kennedy ends his decision with a paragraph that begins “No union is more profound than marriage,…” (p. 28). Union is a coming together and it often has a political context. Another definition of union is marriage. The synonym here is important as it makes “profound” the key word. Kennedy’s focus on the “profound” value of marriage is how he chose to frame his opinion.

The problem for those of us, gay or straight, who choose not to marry or haven’t found a reason to marry is that it demeans our relationships. It suggests that our unions are not heartfelt or intense. It suggests that only through marriage can we create deep and insightful relationships.

In fact there are many more profound unions than marriage. I have a sincere heartfelt relationship with my best friend. I have known him for 51 of my 53 years. No other union in my life will be as lasting. I know listening to him talk about his two sons that he has profound feelings for them. I am sure there are plenty of parents out there who have much more profound unions with their children than with their child’s other parent.

The arts and literature have plenty of examples of profound unions that are not marriages. Walt Whitman found intense and insightful unions with men and nature. Thoreau never married, but it would seem odd to speak of him as not fervent and perspicacious. Michelangelo “espoused his art.” Jane Austin knew that marriage without love was common and not for her. In the political and activist realm we have the single Susan B. Anthony, an ardent worker for women and social equality in the 19th and early 20th century. Two Supreme Court justices are currently unmarried. And of course, there is the wise and all powerful, Oprah.

Using the word “union” and giving it value places marriage in the context of capitalism where it should be. But, that is why the word “profound” is problematic. The union I have with Chase and Citibank is significant and legally binding—mostly in their favor—but not profound. I would hope the Court’s official opinion should be about rights: political and economic. Kennedy does use the Due Process Clause and the Equal Protection Clause in making his claims, but they are a relatively small part of the overall decision. They are not mentioned in the now often quoted final section.

Another sentence that bothered me was the line about loneliness: “Their [lesbians and gays] hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.” Marriage is no guarantee against loneliness. In fact one could argue that marriage often leads there. We see that lonesomeness in the life and writing of Edith Wharton and the films of Douglas Sirk. Sirk’s characters often appear to have all the attributes Kennedy suggests makes marriage so necessary. But the pressures of family, fidelity, and sacrifice, often to lead to unhappiness and a life of married loneliness. A college friend’s parents lived on separate floors of their house as their religious beliefs would not allow them to consider divorce. How very unhappy for all involved.

About half of the adults in the US live unmarried. I imagine some are lonely, but so are some of the married ones. Finding that profound union in one person or in numerous people over the course of one’s life is really unrelated to marriage and probably more related to luck. History shows that many people find these profound connections in work, religion, or creative enterprises. Marriage may actually disrupt these fulfilling experiences.

Marriage is one of “civilization’s oldest institutions” and a historical, cultural marker often used to restrict the movement of women and money. Its transition over the last 100 years was the result of activism, legislation, and judicial decisions. I hoped this decision would focus on inequality, oppression, and suffering, but as the conservative justices like to point out, these words are not in the Constitution.

Kennedy’s poetic prose has taken marriage out of the market and into the theater. This is a melodrama of an opinion, which reinforces negative stereotypes of citizens who choose consciously or unconsciously to not marry and which ignores the reality of married life.

That said, Justice Kennedy and the four judges who joined him have “burst the bonds” of marriage’s “history and tradition” (Roberts p. 29), and they significantly improved the lives of all Americans by allowing more Americans to share in the benefits of and right to marry.

Tim Gerken


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