By agreeing to hear four
cases this term, the
probably will settle the issue once and for all by the end of June. The battles in Kentucky, Michigan, Ohio and Tennessee — the four states from which the cases under review come — are not simply about the rights of gay couples. They are about the meaning of marriage for all of us.
Defenders of same-sex marriage bans frame the issue as a choice between two incompatible views of marriage: The one they associate with same-sex couples centers on adult relationships and personal fulfillment. The other, which they argue excludes same-sex couples, centers on children. But this dichotomy presents a false choice. It misreads both what same-sex couples seek and what marriage means today. Marriage centers on adults and children, and it does so in ways that are consistent with — rather than antithetical to — the lives of same-sex couples.
The good news for same-sex couples is that Justice
seems to understand this, and he is the swing justice to whom everyone is looking. For clues, we need only look to
, the 2013 Supreme Court decision striking down a key provision of the federal Defense of Marriage Act. Kennedy, writing for the majority, and Justice
, writing in dissent, engaged in a debate not only about the rights of same-sex couples but also about the meaning of marriage.
Marriage-equality opponents' stark delineation between an adult-centered and child-centered model of marriage received its most prominent endorsement in Alito's dissent. Alito distinguished between what he labeled a “conjugal” view of marriage, which “sees marriage as … an exclusively opposite-sex institution … inextricably linked to procreation and biological kinship,” and a “consent-based” view of marriage, which “primarily defines marriage as the solemnization of mutual commitment — marked by strong emotional attachment and sexual attraction — between two persons.” For Alito, the first model excludes same-sex couples, while the second accepts them. The government, he reasoned, is free to prefer the first and therefore maintain marriage's sex-based restriction.
On the other hand, Kennedy's opinion in Windsor appears to accept the adult-centered view of marriage — and thereby same-sex couples in marriage. For Kennedy, marriage recognizes and solidifies the interdependent emotional and financial relationship that couples form. This model of marriage clearly can include gay couples, who are already forming families — outside of marriage — characterized by mutual obligations of support. As Kennedy noted in Windsor, same-sex couples welcome both rights and obligations. Marriage provides the legal framework to impose and enforce those rights and obligations, putting the force of the state behind one's private duties.
Yet by implicitly rejecting the “conjugal” view of marriage that Alito advanced, Kennedy did not simply choose an adult-centered model over a child-centered one. Even as he related marriage to adult partnership, he focused attention on marriage's parenting dimensions.
“Without marriage,” he asserted, children struggle “to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”
Unlike Alito, Kennedy's child-centered view is not rooted in a biological, gender-differentiated model of parenthood. Instead, it has adapted to a social model of parenthood that recognizes the many ways in which couples bring children into their lives. As his comments during oral argument in the related case challenging California's
suggested, he had in mind the thousands of children already being raised by same-sex couples — children brought into such families through adoption and assisted reproductive technology.
The adult-centered and child-centered dimensions of marriage that Kennedy embraced in Windsor emerged from many decades of changes in heterosexual family formation — not the onset of same-sex marriage. Over the course of the second half of the 20th century, marriage shed many of its gendered rules and became, as a formal matter, more egalitarian. The spread of no-fault divorce in the 1970s allowed marital relationships to be more easily dissolved, contributing to a model of marriage focused less on permanent obligations and more on choice and personal fulfillment.
Divorce, of course, led to remarriage and the rise of blended families. The step-parent adoption process provided a way to legally recognize the non-biological parent-child relationships formed in these new families. Around the same time, assisted reproductive technology began to provide novel ways for married couples to bring children into their families.
Gradually, the law responded by assigning parentage to those using third-party assistance to have children. Beginning in the late 1960s and '70s, states began to recognize husbands as fathers when the child was conceived through alternative insemination with donor sperm. These parent-child relationships were based on intent and consent, rather than biology or genetics. All of this unfolded well before same-sex marriage rose to national prominence.
The legal meaning of marriage has already shifted. For decades, heterosexual couples have emphasized marriage's adult-based dimensions, focusing on emotional and financial partnership — and have reshaped marriage's child-centered dimensions, filling marriage with nonsexual reproduction and non-biological parent-child relationships. Same-sex couples' lives resonate with these understandings of marriage.
The only basis on which to exclude gay couples from civil marriage is to imagine a model of marriage that does not exist — one that would not only exclude the families of same-sex couples but also the broad diversity of families that inhabit marriage across the country.
Douglas NeJaime is a professor at the UC Irvine School of Law and a visiting professor at the