Hunter, Nan D., "Interpreting Liberty and Equality Through the Lens of Marriage" (2015). The Circuit. Paper 78.
In this essay, I argue that marriage, as described and prescribed in Obergefell v. Hodges, functions as a lens that distorts the principles of liberty and equality upon which the opinion is based. The Supreme Court’s language is saturated with paeans to marriage, to the degree that the opinion seems to suggest that the moral worthiness of same-sex couples who wish to marry provides the ultimate justification for recognizing a constitutional right. The conceptual fulcrum in this analysis is dignity, which other courts have interpreted as an intrinsic human right that extends to a pluralism of family forms, but which this Court positions as closely linked to respectability. Dignity and marriage are interwoven in the Court’s analysis, creating implicit bounds for liberty and equality. As a result, access to a legal status of enormous material and cultural value appears to be as closely linked to social conformity as to law.
Looking to the near future, I point out that, despite the breadth of its language, Obergefell leaves three important questions unanswered: whether the Court’s liberty analysis will extend to non-marital intimate relationships; whether the Court’s equal protection holding will suffice to prohibit discriminatory government policies that do not trench on fundamental rights; and whether there is a commensurate fundamental right not to marry without forfeiture of public benefits that favor persons who choose to marry. These are among the next frontiers in the field of state regulation of sexuality and adult relationships. From a law and social movements perspective, the achievement of equal access to marriage raises for the LGBT rights movement the same question long faced by other civil rights movements: whether and how to seek more robust understandings of equality under law. Obergefell marks an important step forward in efforts to end discrimination, which merits celebration, but it raises as many questions as it answers.