Same-Sex Marriage Legalized in the U.S.

As most readers have no doubt already heard, the U.S. Supreme Court ruled today that same-sex marriage is legal throughout the country.

As the New York Times notes, this landmark decision was the culmination of a rapid arc of progress that first came to the fore back in the early 1990s, when the first states began explicitly banning gay marriage. Only in 2003 did a sole state, Massachusetts, allow for gay and lesbian couples to marry.

screenshot-www.nytimes.com 2015-06-26 13-13-16

This rise in marriage equality was the result in a rapid turnaround in public opinion: from only 27 percent public approval in 1996, according to Gallup, to 60 percent as of this year. As The Washington Post observes, this is far more rapid and dramatic a change than most social issues (such as abortion and capital punishment).

The decision was based primarily on the Fourteenth Amendment, namely its Equal Protection Clause, which requires each state to provide equal protection under the law to all people within its jurisdiction. 

Adopted in 1868 as one of three post-Civil War “Reconstruction Amendments“, the Fourteenth Amendment has served a pivotal role in several landmark civil rights battles, including the dismantling of racial segregation. I recommend learning more about it, given how consequential it has been for social progress in the U.S.

You can read the entirety of the opinion here, which was written by Justice Anthony Kennedy and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. The closing paragraph beautifully sums up the reasoning behind the decision, and has quickly gone viral:

Of course, many other less formal unions are valuable, dignified, and embodying of these same highest ideals, even if they lack equivalent civil, legal, and sociocultural recognition.

Indeed, the Court had predicated its decision on the fact that the institution of marriage has changed dramatically over the span of human history, as The Atlantic points out:

…when you really dig into the history of marriage, the only consistent feature is change. My own professional group, the American Historical Association, filed an amicus brief that leveraged the combined expertise of twenty historians of marriage. The AHA brief used examples drawn largely from American history to show that marriage has never been solely about procreation, with issues like property management taking center stage. Moreover, Ruth Karras, author of Unmarriages, told me in an interview that marriage has almost never been about joining one man and one woman, but instead about “two families”. In that sense, same-sex couples looking for equal protection under the law with respect to healthcare and property rights are pretty consistent with “traditional marriage”.

That is, if there even is such a thing as “traditional marriage”. Karras began studying the multiple forms of medieval marriage—or at least the socially-accepted and often semi-legal long-term forms of relationships—because of her frustration with the idea that, “there was some sort of time that we could go back and look at where marriage was this perfect ideal between a man and woman for purposes of reproduction or creating family. The Middle Ages clearly haunts that formulation”. In fact, Karras continued, for many medieval people, “traditional marriage didn’t even exist. Yes, for aristocrats there was this system, but it’s really not very possible to know much about how people without any money formed and possibly didn’t form their marriages. People seem to have this idea that until the 1960s in America, everybody was pro-marriage—in fact, in the Middle Ages a lot of people lived in other kinds of relations besides what was recognized formally as marriage”…

…As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned…These and other developments in the institution of marriage over the past centuries were not mere superficial changes. Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential…These new insights have strengthened, not weakened, the institution of marriage.

Moreover, in many places, such as the United States, the term marriage is used to denote to two very different types of unions: the civil and the religious. When same-sex marriage is legalized in a jurisdiction, it applies to the former kind and not the latter — churches are still allowed to reject performing and recognizing same-sex marriage for religious reasons, but the state and the law can still recognize marriage in a civil sense, regardless of whether those marriages are performed by a church or just a notary (and it is the second that matters more for legal purposes).

Marriage, as both a term and concept, is not exclusive to Christianity (or indeed any other religion) and actually predates it. Throughout history, marriage has been defined as simply some sort of union between two (or sometimes more) human spouses — note that the term is gender-neutral, as the sexuality and identify of the spouse varies from culture to culture.

The kind of marriage concerning Christians is called “Holy Matrimony”, which defines marriage as a God-ordained, lifelong union only between a man and a woman. This is not what same-sex marriage supporters are trying to change, as it is not the kind of marriage that matters in a legal sense.

That is why individuals typically marry through a religious ceremony and at some point have to also fill out legal paperwork to get legal recognition. The two things are separate, and it is only the second part that matters to our Constitutionally secular state — and that has recently been granted to same-sex couples.

Thus, no church or religious institution is going to be forced to redefine the definition of Holy Matrimony or to perform same-sex marriage. They have ownership of Holy Matrimony, but not the universal concept of marriage, much less the civil and legal sense of it.

All that said, this is just the latest in a long history of developments in the institution of marriage, just in the Western World alone. Already, many are challenging the very concept of a formal, civil union garnering such preferential legal and cultural treatment to begin with (not a new argument, but a more relevant one given this stage in the evolution of marriage).

And to be sure, there is still a long way to go in advancing the human and civil rights of LGBTQ people, among other historically marginalized groups. Formal recognition of their equal rights to a civil marriage is a good step to that end — a big one — but only that.

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