Ashby Hardesty (2nd L) and Rodrigo Zamora (C) hold hands as they wait with friends for their wedding ceremony at the New York City clerk's office in Manhattan, N.Y., June 26, 2015. 
Photo by Brendan McDermid/Reuters

The new marriage inequality

In the San Francisco Bay Area, where I live and work, the excitement is palpable. At long last, marriage equality is here. But before we succumb to our collective euphoria, we should pause and think seriously about the rhetoric that underwrites this magic moment. 

Don’t get me wrong. I am elated that the Supreme Court has recognized a constitutional right to marriage for same-sex couples. This is an historic and momentous achievement for gay men and women. But I worry that Justice Anthony Kennedy’s opinion, which reads like a love letter to marriage, further marginalizes life outside of marriage. By praising marriage so lavishly, Kennedy suggests that all other relationships are less profound, less important, and less worthy of dignity and protection. Ultimately, Kennedy’s hyper-veneration of marriage may actually jeopardize the rights of those living outside of it.

“At a time when more and more Americans are turning away from marriage as a means of organizing their intimate lives, the Supreme Court’s opinion is a conservative throwback.”
Throughout the opinion, Justice Kennedy reminds us – in no uncertain terms – of marriage’s supremacy in the hierarchy of relationship and familial structures. “No union,” he explains, “is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” Indeed, marriage is so profound and so powerful that the choice to marry can “shape an individual’s destiny,” offering “the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.”

But is this the case? Across the country, marriage rates have dropped dramatically among all demographic groups, save the very educated and affluent. Are all of these people living outside of marriage ignorant of the highest ideals of love, devotion, companionship, and sacrifice? Is the love of a single parent for his child less profound than the love between a couple? 

Ironically, these kinds of powerful, non-marital bonds are at the heart of one of the cases that was part of the Supreme Court’s historic decision. When they initially brought their 2012 lawsuit challenging Michigan’s ban on adoption by same-sex couples, April DeBoer and Jayne Rowse were unmarried and raising children together. Their initial lawsuit was not about marriage. Instead, they were challenging a state policy that prevented unmarried couples from jointly adopting a child. At trial, however, the court urged the lawyers to reframe the couple’s claim for joint (non-marital) parentage into a claim for marriage. After all, as Justice Kennedy recounts, marriage was the obvious way to eliminate the “continuing uncertainty” their nonmarital status created in their lives.

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After today’s decision, DeBoer and Rowse will be able to marry, and in so doing, will be able to adopt jointly. But what of the other unmarried couples who want to adopt, but who don’t wish to marry? Or those who cannot use marriage as a vehicle for formalizing their bonds to one another, such as siblings living together in their twilight years? 

At a time when more and more Americans are turning away from marriage as a means of organizing their intimate lives, the court’s opinion is a conservative throwback – one that exalts marriage while giving short shrift to any relationship that is not marriage. More importantly, today’s decision makes this inequality a matter of constitutional law – a point Justice Clarence Thomas derided in his dissent. As Thomas explained, “[p]eople may choose to marry or not to marry. … And the suggestion that Americans who choose not to marry are inferior to those who decide to enter such relationships is specious.”

Melissa Murray is a Professor of Law at the University of California, Berkeley.