The Positive Right to Marry
Obergefell v. Hodges held same-sex couples have a right to legal marriage. As the dissenters emphasized, this right to marriage law is anomalous, doctrinally and normatively. Most rights in the United States Constitution are negative liberty rights. For example, the states may not interfere with procreative choices, but individuals have no right to public funds for contraception. Moreover, if children have no right to public funds for education, it seems morally dubious to claim a right to public support for adult marriages. What is this positive right to marry and what justifies it? This Article reconstructs a conceptual and normative foundation for the positive right to marry. Previous theories of the right to marry as a negative liberty right or an equality right are unsatisfactory, because they fail to justify the connection between intimate liberty and marriage law. The right to marry is a positive right, but one of a specific kind. Unlike the right to education, it is not a claim to public benefits. It is a “power right,” a right to create legal duties for intimate relationships. This right is not simply a means to promote valuable relationships; it is necessary to ensure equal liberty. Relationships carry open-ended commitments that threaten to subordinate the partners to one another. A right to legal marriage is necessary to reconcile intimate liberty with equality.