That being said, I was shocked by the intensity of my reaction to the ruling, especially when excerpts to Kenedy's opinion started showing up everywhere. To make sure I wasn't being completely unreasonable, I read the ruling myself. (Much of which, as another friend noted, borrowed heavily from the cases that set precedence on this issue.)
If you were to replace the word 'same-sex,' in the ruling with 'single' it becomes glaringly obvious that 'marriage equality' is anything but. The supreme court argues that the centrality of marriage to our civilization is so fundamental that it would be unconstitutional to leave anyone out. But in the process it establishes the unmarried as second-class citizens and reinforces the inequalities between those who are married and non-married by defining and dignifying the social and legal benefits that only marriage can confer.
Along with a lot of rhapsodizing about the sacred institution of marriage, the argument was laid out as follows:
1. Marriage is an individual freedom
2. Marriage is a uniquely important relationship unlike any other
3. Marriage protects children and families
4. Marriage is a basic building block of social order
While at face value there is nothing wrong with any of these assumptions, the arguments are laid out to define the benefits of marriage by what is missing when people are left out. I will explore each of these in more detail using excerpts from the ruling itself, so you can see exactly what buttons are pushed. Let's start with the opening rhetoric:
From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound
hopes and aspirations.
For a legal document to sentimentalize the fundamentally contractual nature of marriage, particularly historically, seems a bit rich. Even assuming that we all aspire to marriage and will all someday achieve this 'transcendent' union, I would argue that marriage confers nobility and dignity only to the persons inside the institution, not to 'all persons' (including the unmarried) as is suggested above. I would also add that it both grants and reinforces these 'dignities' by withholding them from those whose 'station in life' is unmarried, showing itself in social, material, and legal bias, as is so aptly demonstrated here and throughout the remainder of the document.
ARGUMENT 1: Marriage is an individual freedom, which blossoms into other freedoms only available to the married
Arguing that "A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy," the ruling recognizes that marriage is one of the most important decisions anyone will ever make and that a citizen owns the right to make that decision for themselves. While I'm grateful for the opportunity to be able to choose my marriage partner --- and not have that choice dictated by the State --- as someone who has not had the sacrament of marriage conferred upon her, I resent the suggestion that by not by being unmarried I have foregone this personal freedom, or the additional freedoms of "expression, intimacy, and spirituality," which according to the ruling are only available through its "enduring bond." The ruling states:
Choices about marriage shape an individual’s destiny. As the Supreme Judicial Court of Massachusetts has explained, because “it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.” Goodridge, 440 Mass., at 322, 798 N. E. 2d, at 955.
The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. See Windsor, 570 U. S., at ___– ___ (slip op., at 22–23). There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices. Cf. Loving, supra, at 12 (“[T]he freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State”).
ARGUMENT 2: Marriage is a uniquely important relationship, unlike any other relationship, and depriving people of marriage is unnecessary and cruel.
Stating that, "A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals," the court attempts to further define the purposes of marriage, citing precedent setting cases involving contraception (i.e. marriage is not necessarily for procreation exclusively), interracial marriage, and prisoners who marry. Stating that the intimate association conferred by a committed relationship is unique to marriage, it argues that this since the ineffable stuff of marriage that is unavailable in any other type of relationship that marriage must be considered a basic right.
I actually think it's pretty cool that we let people in non-marriage supportive situations get married because we recognize marriage is important. But I'm less keen on the idea that it's uniqueness is what confers its basic right. Again, this establishes a disparity between those inside the institution and those outside it. Also the following paragraph is bullshit
Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.
Even if one we agree with this document and consider marriage to be the end all and be all of all human associations, the odds that one partner will outlive another are significant. The law makes provisions for those who outlive their partner in marriage, but not for those who never marry at all. Even if we accept that the marriage relationship is unique, the fear of being alone is not. Failure to make provision for those who are infirm, ill, and alone is an oversight that it will take more than a constitutional right to marry to cure.
ARGUMENT 3: What about the children???
Despite having already established that there are many good reasons for marriage besides procreation, the court makes children and the two-parent family one of its primary arguments, stating that "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."
While theoretically in agreement that the children of same-sex couples should have access to the same rights and benefits as any other child, this section primarily serves to establishe how terrible it is to be a child in any single parent home:
Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.
How is it we can see these drawbacks of a single-family home so clearly and expect marriage to be the solution? How is it that the law will protect the right to marry over the right to be a single-parent --- or the child of a single parent --- and not have recognition or compensation under the law?
Also, the unspoken assumption of this section is that those of us who do not have children or spouses, do not have families.
ARGUMENT 4: "Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order."
This is the section where I really started to see red, because all those rights and benefits that same-sex couples didn't have access to before the change in the law, single people still don't have access to, today. I will let the ruling speak for itself:
In Maynard v. Hill, 125 U. S. 190, 211 (1888), 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.” .... Marriage remains a building block
of our national community.
For that reason, just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. Indeed, while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules. See Brief for United States as Amicus Curiae 6–9; Brief for American Bar Association as Amicus Curiae 8–29. Valid marriage under state law is also a significant status for over a thousand provisions of federal law. See Windsor, 570 U. S., at ___ – ___ (slip op., at 15–16). The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.
There is no difference between
How can anyone read this and not recognize the fundamental inequality that still exists? With 50% of the population being single, what does it say about our society that we still consider marriage to be its central building block? How do we plan for practical considerations: social, legal, material, when being inside the institution vs out of it results in such vast inequalities? Just because we've let more people into the institution doesn't mean that the institution itself isn't fundamental unequal.
Finally, the much-memed closer, which many have said would make excellent marriage vows:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law.
At this point it is really hard for me to refrain from resorting to a Tourette's-like response. This passage sentimentalizes the social bias for marriage in a way that is incredibly dismissive to those of us --- for whatever reason, and often through no fault of our own --- remain outside of it.
I ask you to consider, if marriage embodies the highest ideals of love, fidelity, devotion, sacrifice, and family, what does that mean for those of us who are unmarried? Is the love we have diminished if it is not given or received inside the institution of marriage? By not forming a marital union, are we somehow less than those that do? Is marriage the only love that endures past death? By remaining unmarried am I not equal in dignity under the eyes of the law?
Some might argue that a constitutional right to marriage is like a constitutional right to vote or bear arms. "Just because you don't choose to exercise it, doesn't mean you don't have the right." And yes, the right to marry, 'just like everybody else' is incredibly exciting and important.
But not voting or not bearing arms doesn't have significant legal or financial repercussions like not marrying. And the supreme court did nothing to address this fundamental inequality at the heart of the institution. By not marrying, single folks lose out on a huge chunk of rights and benefits only available to those who do. (Even the once married make out better than those who've never tied the knot.)
So did love win this week? I would have say, "It depends on whether or not you're married." The institution of marriage was strengthened by the ruling, but nothing was done for those of us who continue to live outside its bounds.
In trying to explain to a friend why I was so upset about the ruling, I said, "It's like that time when they abolished slavery, but didn't give women the right to vote."* I would never want to get in the way of my same-sex friends being able to get married, but boy howdy the ruling stung in a way that surprised me, and has been difficult to explain in a way that doesn't come out sounding like sour grapes.
Long time readers of this blog know that I've written about these issues,** before, but usually glibly and with the assumption that I would someday have a traditional marriage and family. After ten years on my own, and aging out of my fertility, I no longer have this confidence. Even if I marry one day, I will never be a young bride. I will never know what it's like to build an adult life together from it's beginning. I am unlikely to have biological children. And the gap continues to grow between my life and aspirations and those who have a two-income home. Being single has taken a significant material and emotional toll on my life. I am looking at caring for aging parents without the support of a partner. And I do not know who will care for me when I am ill or become old. Am I upset not to be married? Sure. But who wouldn't be when the clear benefits and prejudice in favor of marriage are so clearly defined by the highest court in the land? I'm more upset that marriage continues to matter so much that it costs those who are unable to join so dearly. That the supreme court can recognizes this cost --- to the extent that they see marriage as a constitutional right --- but be so blind to the needs of those who continue to be left out.
This is why the alliance is not over. Just as we still have a long way to go to end same-sex discrimination in other parts of the law, we have a responsibility to fight inequality wherever it occurs, especially in arenas where the law or social custom continues to discriminate. The ruling recognizes that marriage does not happen in a vaccuum, "just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union." I might add that no human activity happens in a vacuum. If you are married, please recognize that your relationship is supported --- emotionally and materially --- by those who are not. In return, do what you can to sustain those members of your community who do not have the protection and benefits --- both inside and outside the law --- that marriage confers. Recognize that everybody is part of somebody's family, even if they are unmarried or childless. That even if someone is unable to exercise their constitutional right to marriage, they are an important 'building block' of society, too.
[* In trying to explain to a friend why I was so upset, I invoked the passing of the fifteenth amendment, which abolished slavery, but failed to confer the vote upon women. This caused a major schism between long-time friends and allies in the abolishionist and suffrage movements. Frederick Douglass told Elizabeth Cady Stanton that there was not the political good will to include women as part of the amendment and still get it passed. To which she gave the ugly response that she felt she was more qualified to vote than most freed slaves or recently arrived immigrants. And two icons of American history both became mud-spattered and estranged. It would be another 50 years before women would get the vote.]
** Book review of Laura Kipnis Against Love is about halfway down this post: