Gregg Strauss

What's Wrong with Obergefell

PUBLISHER
Cardozo Law Review
DATE
2018
 

UVA Law Faculty Affiliations

Abstract

Although Obergefell v. Hodges was a historic victory for progressive constitutional law, the Supreme Court’s glorification of marriage created widespread anxiety among progressive family law scholars. Yet, the critics have still not explained why this marriage rhetoric arouses such moral indignation. Some critics predict Obergefell’s rhetoric will shape family and constitutional law in ways that harm nonmarital families, but these forecasts rely on weak doctrinal arguments and cynical speculation about judicial behavior. Others argue Obergefell’s rhetoric was gratuitously insulting. Is that as deep as the objection goes?

Obergefell’s glorification of marriage is wrong, not because it was harmful or hurtful, but because its rhetoric denies the equal dignity of citizens in nonmarital families. For a state to treat all citizens as equals, officials must justify the law with reasons that all can accept as reasonable, even if mistaken. That is why Obergefell could justifiably ignore religious objections to same-sex marriage. If marriage law rests on the idea that different-sex relationships are more valuable, then it treats gay and lesbian persons as second-class citizens who enjoy full legal rights only if they adopt someone else’s vision of the good life. Unfortunately, Obergefell commits a similar sin. The Court glorifies marriage as a secular ideal for family life and authorizes states to encourage marriage as an ideal family form. People in nonmarital families cannot accept this as a reasonable basis for law. Obergefell’s glorification of marriage violates the ideal of public reason in a way that denigrates nonmarital families and contradicts the opinion’s own legal commitment to equal dignity.

Citation

Gregg Strauss, What's Wrong with Obergefell, 40 Cardozo Law Review 631-685 (2018).
 

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