Dropping the Other Shoe:Obergefelland the Inevitability of the Constitutional Right to Equal Marriage

Abstract

After having invalidated the federal Defense of Marriage Act (DOMA), the U.S. Supreme Court “dropped the other shoe” inObergefell v. Hodgesby declaring the exclusion of same-sex couples from marriage at the state level unconstitutional. Written by Justice Kennedy, the majority opinion heavily relied on the dignity-bestowing character of marriage to show why this exclusion is so harmful. But this strategy comes with a cost: it inflicts a stigma even as it conveys recognition—a drawback that an equality analysis can avoid. Respondents had argued that opening marriage dangerously disconnected marriage from procreation, both the historical reason for and the essence of marriage. In finding that they had failed to provide evidence for the harmful outcomes they described, the majority not only provided the rational basis test with a new kind of “bite.” It also asserted that tradition or religious beliefs were not enough to justify exclusion. Once secular purposes define marriage and rational reasons are required to regulate access, the road to marriage equality opens wide. As the line of cases leading up toObergefellsuggests, and developments in Germany, Austria, and other jurisdictions confirm, equality works as a one-way ratchet—albeit without necessarily including polygamy and incest. Crucially, equality changes the focus: From an equality perspective, the harm lies not in the exclusion from a dignity-conferring institution, but in the suggestion that the excluded group is not worthy of participating in it and does not deserve the recognition and benefits associated with it. Instead of aspiring to achieve dignity through marriage, in this view same-sex couples claim recognition as free and equal citizens. Discrimination on the basis of race, gender, or sexual orientation subsumes an individual under a group category whose purported characteristics are systematically devalued, thus refusing to appreciate a person as an individual. It is this denial of recognition that conveys harm to the dignity of the individual above and beyond the respective disadvantage suffered. Thus taken with equality, dignity does not have the exclusive effect it has in isolation, as struggling against degrading exclusion stresses common traits.