Issue in  Same-Sex Couples 

Marriage is both ubiquitous and central. All across our country, in every region, every social class, every race and ethnicity, every religion or non-religion, people get married. For many if not most people, moreover, marriage is not a trivial matter. It is a key to the pursuit of happiness, something people aspire to—and keep aspiring to, again and again, even when their experience has been far from happy. To be told “You cannot get married” is thus to be excluded from one of the defining rituals of the American life cycle.

The keys to the kingdom of the married might have been held only by private citizens—religious bodies and their leaders, families, other parts of civil society. So it has been in many societies throughout history. In the United States, however, as in most modern nations, government holds those keys. Even if people have been married by their church or religious group, they are not married in the sense that really counts for social and political purposes unless they have been granted a marriage license by the state. Unlike private actors, however, the state doesn’t have complete freedom to decide who may and may not marry. The state’s involvement raises fundamental issues about equality of political and civic standing.

Same-sex marriage is currently one of the most divisive political issues in our nation. In November 2008, Californians passed Proposition 8, a referendum that removed the right to marry from same-sex couples who had been granted that right by the courts. This result has been seen by the same-sex community as deeply degrading. More recently, Iowa and Vermont have legalized same-sex marriage, the former through judicial interpretation of the state constitution, the latter through legislation. Analyzing this issue will help us understand what is happening in our country, and where we might go from here.

Before we approach the issue of same-sex marriage, we must define marriage. But marriage, it soon becomes evident, is no single thing. It is plural in both content and meaning. The institution of marriage houses and supports several distinct aspects of human life: sexual relations, friendship and companionship, love, conversation, procreation and child-rearing, mutual responsibility. Marriages can exist without each of these. (We have always granted marriage licenses to sterile people, people too old to have children, irresponsible people, and people incapable of love and friendship. Impotence, lack of interest in sex, and refusal to allow intercourse may count as grounds for divorce, but they don’t preclude marriage.) Marriages can exist even in cases where none of these is present, though such marriages are probably unhappy. Each of these important aspects of human life, in turn, can exist outside of marriage, and they can even exist all together outside of marriage, as is evident from the fact that many unmarried couples live lives of intimacy, friendship, and mutual responsibility, and have and raise children. Nonetheless, when people ask themselves what the content of marriage is, they typically think of this cluster of things.

Nor is the meaning of marriage single. Marriage has, first, a civil rights aspect. Married people get a lot of government benefits that the unmarried usually do not get: favorable treatment in tax, inheritance, and insurance status; immigration rights; rights in adoption and custody; decisional and visitation rights in health care and burial; the spousal privilege exemption when giving testimony in court; and yet others.

Marriage has, second, an expressive aspect. When people get married, they typically make a statement of love and commitment in front of witnesses. Most people who get married view that statement as a very important part of their lives. Being able to make it, and to make it freely (not under duress) is taken to be definitive of adult human freedom. The statement made by the marrying couple is usually seen as involving an answering statement on the part of society: we declare our love and commitment, and society, in response, recognizes and dignifies that commitment.

Marriage has, finally, a religious aspect. For many people, a marriage is not complete unless it has been solemnized by the relevant authorities in their religion, according to the rules of the religion.

What Is the “Right to Marry”?

IN OUR constitutional tradition, there is frequent talk of a “right to marry.” In Loving, the Court calls marriage “one of the basic civil rights of man.” A later case, Zablocki v. Redhail, recognizes the right to marry as a fundamental right for Fourteenth Amendment purposes, apparently under the Equal Protection clause; the Court states that “the right to marry is of fundamental importance for all individuals” and continues with the observation that “the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships.” Before courts can sort out the issue of same-sex marriage, they have to figure out two things: (1) what is this “right to marry”? and (2) who has it?