The Brave New World after Obergefell

Abstract

The common understanding of the function of law exemplified by the claim of the Casey court merely to “define the liberty of all obligation is to define the liberty of all, not to mandate our own moral code,” is false. From Plato onward, the ancients understood that law performs an irreducibly “philosophical” function, and contemporary progressive theorists have recognized this function under notions such as “channeling” and “establishment.” In consequence, contests of right in the legal and political sphere conceal and decide what are in reality contests of truth. It is in this light that this article examines the landmark Obergefell decision, the cases leading up to it, and its aftermath, arguing that what presents itself as a contest of rights is better understood as the codification of a new “technological” philosophy of human nature owing to the reduction of the human body to a machine in the theoretical sphere and the technological conquest of reproductive biology in the practical sphere. This alters the theoretical and historical context for understanding the significance of Obergefell, suggesting that the revolution in marriage and family law culminating in this landmark decision are most adequately understood not as the leading edge in the ever-forward march of liberation, but as the leading edge in the ever-forward march of biotechnology. Such a revolutionary decision, redefining the fundamental realities of human being and life, cannot but affect every area of public life. This essay will focus on two of these areas. First, the Court’s presumption to redefine human nature, marriage, and the family, marks its triumph over these realities. The article will consider the remarkable arrogation of power implicit in these decisions, the way that principles of equal protection and substantive due process are employed as a “principle of nihilism” to negate any limits placed on this power by an antecedent order of nature, and the ways the state will likely be called upon to exercise this power in the future. Secondly, this article will consider how the Court’s codification of a technological archetype of human nature, necessitates the further “biotechnologization” of marriage and family, making the state an agent in the advance of the “new eugenics” associated with assisted reproductive technologies and genetic science, and hastening the arrival of a biotechnical future.