Obergefell v. Hodges, the case legalizing same-sex marriage throughout the country, lays bare a bitter split. That disagreement is not only about the rights of gays and lesbians to marry, but about men and women’s roles and what it means to make a family.
You could call the majority’s view “Free to Be… You and Me.” Justice Ruth Bader Ginsburg, who joined Justice Anthony Kennedy’s majority opinion, frequently cites the 1972 Marlo Thomas album and book, which later became a TV special.
“No one should be held back, boy or girl – because of gender, artificial gender barriers. That everyone should be – in the words of a wonderful song that Ms. magazine popularized, everyone should be free to be you and me,” Ginsburg explained in a msnbc interview this February. Although Marlo Thomas and Friends didn't quite get there, the "Free to Be" view includes gays and lesbians having the freedom to marry and to have that marriage equally recognized by the state.
You could call the dissenters' view the “gender-differentiated” one, which is how Justice Anthony Kennedy charitably referred to it in the majority opinion. You could also call it patriarchy.
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In the 1970s, Ginsburg made her name in a series of cases challenging how the law stereotyped men and women. (Many of the plaintiffs she brought to the Supreme Court were widowers, like Jim Obergefell, the named plaintiff in the same sex marriage case, or like the widowed Edie Windsor whose case brought down the Defense of Marriage Act in 2013.) The upshot of Ginsburg’s sex discrimination cases was the government generally can’t put men and women into separate boxes, even when the justification is that the sexes have complementary and different roles. Or, as Kennedy writes in today’s opinion, “These classifications denied the equal dignity of men and women.”
Kennedy adds that history is no excuse for denying equality. Society can become more enlightened, an argument Ginsburg made before the court to justify throwing out gendered classifications, and the law needs to catch up to that.
“The Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged,” Kennedy writes. One of those institutions, as Ginsburg pointed out at oral argument in the Obergefell case, is marriage. Separate is not equal.
Same-sex marriage opponents, limited in how much they could argue that men and women are fundamentally different and one can only be married to another, were left with the claim gay people had to be shut out of marriage because marriage is about having babies. Kennedy and the four liberal justices soundly rejected that argument.
“That is not to say the right to marry is less meaningful for those who do not or cannot have children,” Kennedy wrote. “An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State.” That is consistent with the fact that infertile people are allowed to marry, but the assertion also makes a deeper point about what constitutes a family. Is it biology, or is it willful commitment? In a country where women’s reproductive functions are still treated differently under many state laws – particularly in regulations around abortion and contraception – and where many people choose to have children without marrying, Kennedy is implicitly making a crucial statement that treats men and women as autonomous individuals, not baby-making units. No wonder he kept citing the cases, including 1965's Griswold v. Connecticut, that struck down contraception bans.
Contrast that with the gender-differentiated view of the four dissenting justices. “Procreation occurs through sexual relations between a man and a woman,” writes Chief Justice John Roberts. “When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.” In other words, sex is a public responsibility, not a private function. Marriage is a yoke for reluctant men, and there is only room in it for men and women playing traditional roles.
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Like Kennedy, both Roberts and Justice Clarence Thomas mention the cases where the court began to recognize reproductive privacy. Thomas glumly brings up Planned Parenthood v. Casey, the 1992 case where Kennedy joined with Republican appointees to affirm the constitutional right to access abortion as part of charting one’s own destiny. But no one spells out the gender-differentiated view as well as Justice Samuel Alito. He writes that the majority is relying on a version of marriage that “focuses almost entirely on the happiness of persons who choose to marry….For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.” Alito says that might be hard for people to believe, because “the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women.” Women going their own way, implicitly challenging the patriarchal structure whether they want to or not, is inherently a cause for worry.
It is worth pointing out that as a lower court judge, Alito got a chance to rule on Planned Parenthood v. Casey. He upheld a Pennsylvania law that required a woman seeking an abortion to notify her husband beforehand, something that would put women on equal footing with teenagers in many states. The Supreme Court disagreed, in an opinion co-authored by Kennedy, holding that spousal notification would endanger some women in abusive marriages. Even within a marriage, women and men had equal dignity.
But in his dissent to the same-sex marriage case, Alito sees a lot to like about the old ways. “The family is an ancient and universal human institution,” he writes. “Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects.”
Even the five justices in the majority would agree with that. It’s just that they would say we’ve changed for the better.