In the case of Obergefell v. Hodges, decided on 26 June 2015, the Supreme Court of the United States has ruled by a 5-4 majority in favour of same-sex marriage. The majority judges have held that state governments must license same-sex marriages and recognize same-sex marriages lawfully licensed and performed elsewhere.
The SCOTUS decision
The “opinion of the Court” - i.e. the opinion commanding a majority of judges - was delivered by Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts dissented, along with Justices Scalia, Thomas, and Alito.
Although I have not yet digested the entire 100 pages of the judges' opinions, it is clear that the case turned on the court’s interpretation of the US Constitution’s Fourteenth Amendment, which, most relevantly, requires as follows: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.”
The legal issue, then, was whether the refusal by numerous states of the union to license, register, and recognize same-sex marriages amounted to a breach of the Equal Protection Clause, i.e. a denial of the equal protection of the laws.
The Fourteenth Amendment was adopted in 1868, soon after the American Civil War, and the obvious intention of the Equal Protection Clause was to forbid discrimination in the American legal systems of the time on racial grounds - particularly, it was to forbid discrimination against emancipated black slaves. The wording is, however, sweeping, and there is nothing to prevent its interpretation as forbidding discrimination by the law on the ground of sexual orientation.
Still, it’s obvious enough that, simply as a matter of black letter legal interpretation and established precedent, the case of same-sex marriage could be argued either way. After all, four of the nine judges dissented in this case, and a court with only a slightly different composition could have ruled the other way. Nor is it clear from what I’ve read so far that the dissenters reasoned in a merely contrived manner: they argue, with much exasperation but some plausibility, that it is the majority who have stretched the historical and legal intention of the words.
At the same time, it is also obvious enough how the words, broadly and generously construed, can be used to strike down state laws that allow opposite-sex couples to marry - with all that that entails socially and legally - while not allowing same-sex couples to do so.
My own support for the provision of same-sex marriages is already on the public record, so it’s not surprising that I welcome the outcome, and I am pleased for the same-sex couples who will benefit from it. (I examine the issues in some detail in my 2012 book, Freedom of Religion and the Secular State.) There is much euphoria, and I extend my congratulations to all the gay men and lesbians who will now have what was denied them: the ability to marry partners whom they love.
Conservatives should move on
There is also room for some dispassionate reflection on what this judgment really signifies in historical perspective. One point that has been missed by many commentators is that this legal victory for gay couples, the result of many years of activism, is not entirely a social defeat for conservatives; and, although they are not my political tribe, I urge them to embrace the outcome as reflecting a social compromise that they can live with and even take some comfort from.
For an earlier generation of left-wing activists, marriage was an outmoded, patriarchal, and oppressive institution aimed largely at reining in the sexuality of women. Prior to the 1980s, it had little attraction (or perceived relevance) to the gay and lesbian community, and many sexual radicals sought its destruction as a key social and legal institution.
For now, that viewpoint - one for which I retain some residual sympathy - has lost out. This happened in the context of a grand social compromise, whereby the nature of marriage was considerably, and increasingly, transformed. In earlier centuries, within European Christendom and its colonial extensions, the purposes of marriage tended to be patriarchal and disadvantageous to women, often less than romantic, and largely concerned with economic ends. The ideal of an equal union involving love, intimacy, and companionship gradually became the dominant understanding of marriage only during past two centuries or so, and marriage’s rejection as a means of sexual control - as a narrow circle within which sexual experience would be legally and socially acceptable - is even more recent.
The institution of marriage has survived the sexual revolution of the 1960s and 1970s. It continues to maintain social prestige, and it retains deep emotional significance for most citizens, including very many gay men and lesbians. Once they shed their aversion to homosexuality itself - as, to their credit, many have - social conservatives should take heart that marriage is something that so many gay men and lesbians actually want, and that it remains, admittedly much transformed, a treasured and idealised institution.
Social conservatism likewise needs to transform itself: conservatives should accept the legal outcome in this case, understand the continuing social importance of marriage as in many ways a victory for their viewpoint, and move on. There are many other issues around which they can continue to define themselves. This should no longer be one of them. The contemporary conception of marriage is one that conservatives can find the resources to accept and value, but it is a conception of marriage from which gays can no longer rationally be excluded.
For the foreseeable future, at any rate, marriage is not going away as a crucial, widely endorsed and admired, social institution. The campaign leading up to the latest result in the US is evidence of that, and the Supreme Court victory may well consolidate, rather than diminish, the institution’s ongoing relevance.
The social meaning of marriage has altered dramatically over the past half-century - for the better, in my opinion - but note that Obergefell v. Hodges is the culmination of changes that had already taken place during that time. This social, and now legal, result confirms that marriage is a different, a kinder, more companionate, less patriarchal, institution from what it was in the eighteenth century or even, say, the 1950s. The provision of same-sex marriage makes sense only in that context: but again, the increasing availability of same-sex marriage is a result, not the cause, of the changing nature of marriage itself.
What about Australia?
My own country, Australia, is increasingly an outlier among Western liberal democracies in not providing for same-sex marriage. At this point, resistance to the idea has become absurd and unnecessary (even, I submit, from the viewpoint of realistic conservatives). It looks mean-spirited and out of touch.
Australian politicians need to understand that the popular mood has changed. Marriage itself has changed, along with its social meaning. It’s about time to accept that.
Authors: The Conversation