Obergefell v. Hodges and Nonmarriage Inequality,
104 Cal. L. Rev. 1207
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol104/iss5/4
On June 26, 2015, the Supreme Court announced its much- anticipated decision in Obergefell v. Hodges, opening the door to nationwide recognition of marriage rights for same-sex couples. The public response to the Court’s decision was immediate and overwhelmingly positive. There is certainly much to celebrate about the Obergefell decision, but there is also cause for serious concern— even alarm. Although the Obergefell decision is a victory for same- sex couples that wish to marry, it is likely to have negative repercussions for those—gay or straight—who, by choice or by circumstance, live their lives outside of marriage.
Obergefell builds the case for equal access to marriage on the premise that marriage is the most profound, dignified, and fundamental institution that individuals may enter. By comparison, alternatives to marriage, which I collectively term “nonmarriage,” are less profound, less dignified, and less valuable. On this account, the rationale for marriage equality rests—perhaps ironically—on the fundamental inequality of other relationships and kinship forms.
Some may dismiss Obergefell’s veneration of marriage as nothing more than rhetorical flourish. But the decision has concrete implications for life outside of marriage. Over the last fifty years, in a series of cases that I term the “jurisprudence of nonmarriage,” the Supreme Court has offered tentative constitutional protections for nonmarriage and nonmarital families. By further entrenching marriage’s priority, Obergefell’s pro-marriage impulse not only demeans and challenges the status of nonmarriage, it undermines the values and principles that underlie the jurisprudence of nonmarriage. Thus, even as Obergefell expands the right to marry, it may also diminish constitutional protection for life outside of marriage.