(Edited - and sanitized -- version of this essay found on this publication)
On June 26, 2015 the Supreme Court by a single vote in the case of Obergefell v. Hodges created a new landscape for the meaning of marriage in the United States. We now look back on the time when this was defined not only by law, but by a cultural tradition reinforced over centuries as idealized romantic love between a man and a woman. Now, that is in the past; this part of the culture war having been won by the progressive movement - for lack of a more accurate descriptor. This means consideration of unintended consequences can no longer be dismissed as an argument by conservatives to retain traditional marriage. The war is over, the issue is dealing with the new order.
Marriage, pre Obergefell incorporated a universal ideal of western societies, created and celebrated by innumerable poems, songs, movies and novels. Common courtesy required an assumption that the bride and the groom were marrying for some version of this ideal. "Love" was the exalted poetic expression, sexual gratification and common interests the more prosaic elements of such marriage, literally the merging of two into one.
Of course this was the myth, one not subject to accurate surveys of its prevalence, but one that we went along with. Over time, laws were enacted that attempted to eliminate those who blatantly deviated from this general idealized institution. If love was essential, and if marriage was an intimate merger then it must be between two people only, so bigamy became universally criminalized. In order that the love be between equals, based on broader principles of family and clan, every state limited the institution by consanguinity, degree of blood relationship. All states prohibit first order relationships, and some second order, between close cousins.
We never did extend this promoting the ideal of marriage to age discrepancy, even though we still have a wide range of minimum ages among the various states. But no state has ever defined maximum age differences between the two parties; so a girl could marry a man three generations older without any legal hindrance. Maybe love had something to do with it, but during the depression those with coveted civil war pensions found many young women whose love may have been for that financial security more than their aged spouse. And, of course, pre-nuptual contracts and no-fault divorce are all deviations from the misty ideals of song and screen.
The Supreme Court can decide a case that earns landmark status, with the name of the plaintiff becoming immortalized in the decision, yet the consequences do not necessarily follow the instructions of the majority. Brown v. Board of Education ostensibly ended school segregation over sixty years ago, yet, based on statistical analysis schools are arguably more divided between blacks and whites than before that decision. Segregation of schools is a product of our racial history and values, with schools being only one component that is dependent on these elements that were not the essence of that 1954 decision.
I would offer that the current decision to legalize same sex marriage is about gender differences as reflected by culture, as such only minimally affected by laws. The broader consequences of this decision have never been part of the national discussion. This Supreme Court decision was based on several simplistic memes that prevailed, like snippets of DNA taken out of the whole tell nothing about the nature of the organism.
This essay is not a brief against same sex marriage, as this is now the law of the land, one that will not be reversed, nor am I convinced that it should be. The arguments why the decision should have been different are stated clearly in the dissents. In this post-Obergefell era, we can engage the meaning of this change of law in a way previously not possible when it was being contested -- and thus deeply politicized. It was total war between the two sides, with language being the main order of battle. This is now over, just like on August 15th 1945, Japs became Japanese, and previous enemies joined in a desire to go forward under the new state of affairs. So too, on this day new norms must be addressed, new myths created, and like the end of WWII, the victors have as much investment in mutual accord as the losers.
As I described previously, marriage has long been quite different than the idealized myths accepted by many. Yet, sexual intimacy has long been a continuing element. Only this institution provided religious and legal sanction for this otherwise sinful activity. There still is one area where the validity of a marriage is subject to legal scrutiny that is based on the idealized myth of romantic love. This is validating the "genuineness" of an emigre's marriage to an American citizen. Here's the description of the process from one authoritative source on sham marriages for obtaining citizenship:
What is the U.S. government’s view of a typical marriage? The statutes and regulations don’t go into detail on this, so the following comes from a combination of court cases and attorneys’ experiences. You certainly are not required to match every description on this list -- but the fewer you match, the greater the likelihood that you will face lots of questions and close scrutiny of your application.
The "normal" married couple has a fair amount in common. They share a language and religion. They live together and do things together, like take vacations, celebrate important events, birthdays, and holidays, join clubs or gyms, and have sex and children. Typical couples also combine financial and other aspects of their lives after marriage. They demonstrate their trust in one another by sharing bank and credit card accounts and ownership of property, such as cars and houses. They celebrate each others' birthdays and meet each others' families.
Now, post Obergefell, these assumptions become more problematic, as they are based on traditions that no longer apply- less so today than yesterday. In reality they have not been universal for a long time, yet one aspect now stands out. Is having a sexual relationship to remain an indication of legitimacy of marriage, and if so, should what had been the crime of sodomy between men until recently now become an activity to advance a goal of citizenship? If we now simply exclude shared sexual activity from one of the elements of legitimacy of marriage, what is left other than affection perhaps, or any possible sets of "goods' that government chooses to legitimize.
If one man has a high income, with a friend less wealthy who may even have dependents, should they be denied the legitimacy of a marriage license as a door to citizenship? Of course this would reduce income tax for the wealthy party, yet would this require the attributes of marriage, including sexual relations? The assumptions that still serve the Immigration authorities are as vague to define marriage as Justice Stuart's "I'll know it when I see it" was to define pornography. While the quip became famous, such a subjective definition has no legal meaning, opening the door to unlimited pornography. But for those who feel this is more expansive freedom of expression, it came at a dire cost. The penalty for even cartoon graphics of children performing these sexual acts is draconian for those convicted of mere possession. The rage against pornography was simply displaced to the few who are prosecuted for enjoying this solitary sexual pleasure.
There is another more serious issue that must be evaluated going forward. This is the reality that sexual intercourse can be an act of love, but also a violent assault, with a stronger emotional damage when the latter - rape - is perpetrated on a man. In fact, what is generally seen as acceptable "coming on to" by a man to a women, can be seen as a grave insult when the initiative is not welcomed. At this point I will illustrate this with an obscene "joke." (reader may want to skip the next paragraph)
Mel, a shy accountant, after one last bad decision in choice of lawyers, is sentenced to ten years in prison. His new cellmate, Cleatus, a tough muscular killer, approaches him after a few days, saying, "we should be like a family here, you and me." Melvin is pleased that he's not the violent man he feared and agrees. "O.K, Mel, who do you want to be, the Mommy or the Daddy?" Mel thinks for a bit, and says, "I'll be the Daddy." Cleatus smiles and says, "O.K, Now you go down and suck off Mommy's dick !"
O.K., for those who wisely skipped the "joke" -- it illustrated a reality not rare among those who live a life of violence ending in incarceration. While mostly ignoring this abuse, previous norms of antipathy towards seduction of one man by another have acted as a protection for those who are weaker - however defined. The Obergefell decision, by implying that such overtures, irrespective of genders of the parties, are to be under the same rules, does not acknowledge the extent and harm of inter-male hostility, much less accept that such behavior evolved as an integral part of primate sexual dimorphism. This complementarity of genders is a fact of amoral evolution, that has nothing to do with the revealed truth of God's word.
If there is to be a celebration of this Supreme Court Decision it should not be cast as a defeat of "homophobes" -- an irrational epithet that has been part of the armamentarium used in this war to depict any opposition as a deplorable mental defect. If this barely examined change in our central cultural myth is to be liberating, it can not be to the detriment of those who opposed this, who have been cowed by the current linguistic simplification worthy of Orwell: Discrimination = bad, Equality = good, Bigotry = evil.
Let the winners, those who see gender, as they do race, as a social constructs having no biological reality, while enjoying this victory, return to their roots of rationality. Males and females are different in ways that are verifiable from infancy to death, but also in subtleties we don't fully understand, only some of which are social constructs. Societies do form norms around these, some oppressive and others consistent with viable cultures. This Obergefell decision is historic. Yet, the cheering should be conditional on going beyond the victory. Those who claim that the arc of history bends towards justice have no evidence for this being true, as over the course of civilizations it certainly has gone both ways - the direction only knowable in retrospect.
This battle is over. Marriage as an institution continues to be transformed as reflective of our larger culture -- sometimes for the better other times not. War is ugly, whether fought with military weapons or vilification of the enemy, as sides must be taken, with those not with us being deemed against us
The greatest distortion of this entire movement that culminated in this Obergefell decision was that the only opposition was from benighted religious fundamentalists. This deflected the reality that this movement was a classic manifestation of the sociological phenomenon known as the Bandwagon Effect where an idea takes on a life of its own immune to any other perspectives. Just as no high level law firm would make the case to the Supreme Court, those in the learned social sciences with values built over centuries of objectivity were silenced by the sound of the cheering on the bandwagon for equality and justice. None in this academic community chose to risk all by standing athwart this parade to yell "Stop!"
The decision called "Obergefell" has ended the battle but not the war. It would be a mistake if the process of this victory becomes the norm for resolving social issues, with heated verbiage shutting out enlightened discourse. Our country does not need another divisive wedge that is seen as vindication for one side based on a single vote majority of a non elected body. The question not resolved or even addressed by this decision is whether this country shall descend into being shaped by sound bites or develop a mode of discussion based on candid open mutual respect.
This will determine which way this decision bends the arc of justice.
Addenda:
I wrote an alternative history, based on a true event, the first state Supreme Court decision legalizing same sex marriage in Massachusetts, Hillary GOODRIDGE & others [FN1] vs. DEPARTMENT OF PUBLIC HEALTH & another. [FN2] SJC-08860 decided in 2003. By this decision the chain of events based on the constitutional mandate for every state to give full faith and credit to another was set in motion.
The title, "Margaret's Choice - a Fantasy" focuses on the actual background of two liberal Justices, Chief Justice Margaret H. Marshall and Associate Justice Martha Sosman. It is Martha's dissent, based on her being a staunch social liberal that is the sole effective argument that has not been tainted as being antagonistic to the broad values of progressives. Her full dissent is appended to my essay and can be found from this URL - PDF beginning on last line of 20/27.
--------------------
This N.Y. Times OpEd echos sentiments of this essay, The Supreme Court’s Lonely Hearts Club
Clearest Example of N.Y. Times distortions in promoting same sex marriage. It is my demonstrating false statements in an OpEd that was published the week of oral arguments of Obergefell, Marriage Equality among Primates
(1) The Rise, Fall and Continuing Uses of Adultery and Fornication Criminal Laws,
Dr. JoAnne Sweeny
Loyola Law Review article circa 2014
Current article describes how laws ruled unconstitutional by inference, can remain in state codes. This can affect cases such as allowing a landlord to refuse to rent to unmarried couple, but only on rare occasion. These laws peaked in the turn of the 20th century (pp153)
*******