Obergefell Must Go

Last week marked ten years since the Supreme Court’s decision in Obergefell v. Hodges—the case that invalidated state laws defining marriage as the conjugal union of husband and wife and required states to issue marriage licenses to same-sex partners.

The decision had a stunning impact on American public opinion. Same-sex marriage, once rejected by a solid majority of Americans, became acceptable, for a while at least. By the fifth anniversary of Obergefell, same-sex marriage appeared to have become a permanent fixture of American life; even Republican voters solidly supported it.

Recently, however, Republican support for the idea that same-sex partnerships should be recognized as legal marriages has diminished, though it is still secure among Independents and strongly favored by Democrats. This raises the question of whether Obergefell could go the way of Roe v. Wade and be reversed by the Supreme Court, perhaps in litigation arising from legislation in a state such as Louisiana, in which belief in marriage as a male-female union is strong.

Andrew Sullivan and others who support same-sex marriage have warned that a “backlash” against it is developing because the left-wing advocacy groups that produced Obergefell almost immediately pushed even more radical ideas, such as allowing men and boys who identify as female to be given access to female-only spaces. These same organizations seek to compel young children in public schools to read ideologically one-sided pro-LGBT books, expose kids to “drag” shows, and so forth.

On issues such as these, those who favor traditional moral ideas and conceptions of rights and freedoms are winning, in courts as well as in legislatures. One could argue that the focus should be kept on these matters, as same-sex marriage has become a “permanent reality.” But as a matter of principle, if one believes that marriage is inherently a conjugal bond—that is, the union of one man and one woman, and not a mere form of sexual-romantic companionship or domestic partnership—then the “law” imposed on the nation by the Supreme Court in Obergefell is a defiance of moral reality.

As Ryan T. Anderson has observed, historically and across cultures, marriage is the relationship that unites a man and a woman as husband and wife to be father and mother to any children born of their union, maximizing the odds that those children will be brought up in the socially honored and legally recognized bond uniting the man and woman whose sexual union brought them into being, and conferring upon those children the benefits of both maternal and paternal care and influences. Indeed, if it were not for the fact that humans reproduce sexually, and not in the asexual way that some other species do, no one would ever have come up with the idea of marriage.

This does not mean that couples who, due to age or infirmity, cannot have children aren’t really married. Marriage, though a form of relationship whose contours, norms, and thus character are established by its singular aptness for the procreation and upbringing of children, is not merely instrumentally valuable—even to the great end of having and rearing children. The law has always recognized that infertile opposite-sex partners can enter into marriage understood in precisely that way because marriage is an inherently valuable form of relationship, not a mere means.

Indeed, when a society removes from its understanding of marriage the principle of sexual complementarity—viewing marriage as fundamentally an emotional bond, rather than a multi-level (biological, emotional, and rational-dispositional) sharing of life whose foundation and matrix is the biological union made possible by the sexual-reproductive complementarity of male and female—it by the same token eliminates any principled basis for believing that marriages are to be monogamous, rather than polygamous or even polyamorous. It similarly eliminates the basis for believing that marriages are to be sexually closed, rather than open; pledged to permanence (“till death do us part”) rather than for a term of days, months, or years; or recognized by the state at all (as opposed to being treated as purely private matters, such as baptisms and bar mitzvahs).

What’s more, the traditional conception of marriage as a male-female bond makes sense of a central aspect of marriage law that cannot be accounted for by any conception of marriage that treats it as a form of sexual-romantic companionship, as opposed to a conjugal bond—namely, the idea that marriages are consummated (making them complete and unannullable, even if divorce under some conditions is legally permitted) by acts fulfilling the behavioral conditions of procreation, whether or not the non-behavioral conditions of procreation happen to obtain. In other words, as a “one-flesh union” of sexually complementary spouses, marriage is consummated by acts of coition, irrespective of whether a child is (or can be) conceived.

Indeed, when a society removes from its understanding of marriage the principle of sexual complementarity—viewing marriage as fundamentally an emotional bond, rather than a multi-level (biological, emotional, and rational-dispositional) sharing of life whose foundation and matrix is the biological union made possible by the sexual-reproductive complementarity of male and female—it by the same token eliminates any principled basis for believing that marriages are to be monogamous, rather than polygamous or even polyamorous. It similarly eliminates the basis for believing that marriages are to be sexually closed, rather than open; pledged to permanence (“till death do us part”) rather than for a term of days, months, or years; or recognized by the state at all (as opposed to being treated as purely private matters, such as baptisms and bar mitzvahs).

What’s more, the traditional conception of marriage as a male-female bond makes sense of a central aspect of marriage law that cannot be accounted for by any conception of marriage that treats it as a form of sexual-romantic companionship, as opposed to a conjugal bond—namely, the idea that marriages are consummated (making them complete and unannullable, even if divorce under some conditions is legally permitted) by acts fulfilling the behavioral conditions of procreation, whether or not the non-behavioral conditions of procreation happen to obtain. In other words, as a “one-flesh union” of sexually complementary spouses, marriage is consummated by acts of coition, irrespective of whether a child is (or can be) conceived.