'Getting the Government Out of Marriage' Post Obergefell: The Ill-Considered Consequences of Transforming the Statees Relationship to Marriage

Abstract

To say after U.S. Supreme Court’s landmark decision extending the right to marry to same-sex couples in Obergefell v. Hodges that the simmering dispute over marriage turned into a “raging inferno” would be an understatement. Collisions over same-sex marriage erupted almost immediately around the country — captured most famously by Kentucky clerk Kim Davis, who shut down marriage to heterosexual and same-sex couples alike, rather than “violate [her] conscience.” Despite the possibility of muting the impact on religious dissenters with well-drawn statutory protections, a dangerous idea has taken hold: namely, that it is far better to “get the government out of the marriage business” entirely rather than enacting piecemeal “fixes” to permit those deeply opposed to same-sex marriage to step aside. This Essay unpacks competing visions advanced by legislators, social conservatives, and others for “getting the government out of marriage” — from the idea that society should simply redub civil marriages as civil unions to the proposed legislation to eliminate the status of marriage in favor of enforcing parties’ contractual agreements.This Essay argues that each proposal fails to preserve vital benefits and features of marriage as we currently understand it. First, radically transforming the state’s relationship to marriage, whatever form that may take, risks disturbing the delicate web of norms around marriage. Marriage signifies faithfulness, permanence, emotional and financial interdependence, and physical security — norms that are propped up by continued inclusion of religious couples in the civil institution now known as “marriage.” Transforming the state’s relationship to marriage carries the risk that by cleaving apart what has always been two intertwined aspects of marriage — civil and religious — society over time will come to see the institutions as wholly separate, leading to an unwinding of the norms.Second, each proposal glosses over a tangle of practical problems: What happens to the millions of Americans who have relied upon the state’s existing structure? Further, how will couples who “contract” rather than “marry” secure the myriad social benefits attached to marital status, like entitlement to spousal benefits from employers or Social Security? Will contracting couples have the foresight, discipline, and, most significantly, roughly equal bargaining power to arrive at fair agreements governing the financial and domestic aspects of their relationship?Finally, the Essay returns to the fork in the road facing state legislators: “end marriage” or enact commonsense accommodations for those who cannot, consistent with their faith, facilitate any marriage. This Essay concludes it is far wiser to enact specific protections for religious objectors post-Obergefell than to radically deconstruct marriage. Ultimately, society should be loath to unwind the religious and civil dimensions of marriage since the consequences may be so profound.