Looking Back on the Struggle for Marriage Equality
Jun 26, 2015
3 Min read time
Today, marriage was affirmed as a constitutional right for same-sex couples in the United States.
A march for marriage equality. Photo: eatswords
Today, marriage was affirmed as a constitutional right for same-sex couples in the United States. The Supreme Court’s historic decision in Obergefell v. Hodges means that states have neither the right to ban same-sex marriages nor to refuse the recognition of those performed in other states.
This has been a long struggle, and Boston Review has covered it from many angles over the years.
Amid challenges to the Defense of Marriage Act (DOMA) in 2011, Pam Karlan pointed out that timing is key because the Supreme Court listens to the public. The national political climate inspires new legal interpretations. Karlan found evidence in other landmark Supreme Court decisions, noting that the Court often reflects progressive social change rather than precipitating it. In the case of same-sex marriage, public opinion had shifted rapidly, and she predicted that such a sea change would end up factoring into the justices’ decisions.
Other contributors have focused more closely on the institution of marriage itself. In her 2011 article, Nancy Cott addresses opponents of same-sex marriage arguing from tradition, those who claim “marriage has always been between a man and a woman and must remain so.” Instead, Cott argues, the true history of marriage is dynamic rather than static. Considering the shifting law of coverture, divorce, and immigration, Cott finds that “features of marriage that once seemed essential and indispensable proved otherwise.”
In her 2003 article, Mary Lyndon Shanley counters arguments that marriage is heading for obsolescence and ought to be replaced by individual contracts. Because “the contract model treats persons as rational and bounded individuals,” it ignores the crucial “role of committed relationships in shaping the self.” Marriage, she argues, is more than the sum of its parts as well as an institution in which the public has legitimate interests.
In terms that directly conflict with Justice Anthony Kennedy’s lauding the superior “dignity” of marriage relations in the Obergefell decision, Jason Anthony takes issue with the notion that marriage is the apex of loving relationships. He wonders whether the fight for marriage equality has therefore, in some respects, been a moral failure. In their time living outside the bounds of conventional marriage, gays and lesbians created valuable new conceptions of what it means to love. Will integration into a “traditional, one-size-fits-all model for love” undo those lessons learned on the fringe?
Taking to our pages again just after DOMA was ruled unconstitutional in 2013, Shanley raised concerns about the perceived tunnel vision around same-sex marriage. She interprets the focus on marriage equality as potentially reinforcing “a tendency to see marriage as the defining marker of ‘family’ itself. . . . or, worse, the only legitimate grounding for partner or parent-child relationships.”
David I. Levine brings the conversation back to the issue’s legal intricacies and argues that if sexual orientation is considered innate—immutable—then LGBT people could be designated a “suspect class.” This would mean policies targeting them would be subject to “heightened scrutiny.” Ultimately, the court did not settle this issue in rendering its decision on same-sex marriage, leaving it an open issue for future consideration.
Today’s decision provides legal settlement to an important civil rights challenge, but, if same-sex marriage resembles other objects of civil rights activism, legal approval will not be the final word. As Karlan noted in 2012, rights are not especially useful without remedies to ensure they are not violated. Declaring rights is one thing, but vindicating them is another.
Finally, there remains the looming question of religious liberty, the field of which is expanding as courts grant corporations the opportunity to lodge claims under the Religious Freedom Restoration Act. Will more companies assert religious identity? If they do, will they seek exemptions from, say, providing employment-based benefits to the spouses of legally married same-sex couples? We may find out in the years ahead.
At Boston Review, we recognize that democracy and its attendant rights are achieved through the work of citizens, not announced by officials or declared in documents. Today’s ruling is not the end of the struggle for equality; it marks a new stage in a long and ongoing process of deliberation and activism.
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June 26, 2015
3 Min read time