Traditional Marriage on Trial: The Supreme Court, Same-Sex Marriage, and the Fate of Secular Argumentation

Abstract

In the course of 2015's landmark decision legalizing same-sex marriage across the country, the U.S. Supreme Court was called upon to address, among other things, the question of whether same-sex marriage threatens the welfare of Americans. The court's answer to this question is essentially reducible to one sentence: “The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe.”1 This succinct dismissal of a line of reasoning that has for years dominated the courtroom discourse of so-called traditional marriage was not surprising; it followed on the heels of a series of withering criticisms from various lower courts (most famously, the opinion penned by Richard Posner in the 2014 case of Baskin v. Bogan), as well as on the heels of an unconvincing—what many have not hesitated to call incoherent—presentation of this argument's merits during the oral arguments for Obergefell v. Hodges. In a previous article, published in 2014 in the Journal of Church and State, I traced the development and predicted the decline of this line of argumentation—a line that has emphatically downplayed longstanding religious and moral arguments against same-sex marriage in favor of arguments based on the threats posed by same-sex marriage to “responsible procreation,” to the welfare of children, and to the health of society. In my previous article, I endeavored not merely to understand the genesis of such argumentation but also to push back against the tendency among many legal professionals to hold such argumentation in immediate contempt. Rather, I argued, the repeated deployment of such language should attune us to a unique matrix of problems faced by religious conservatives aspiring to advocate for traditional marriage within the public sphere: namely, the problem of how to articulate the argument for traditional marriage without invoking the religious doctrines and beliefs that so clearly inform their position on this issue. Moreover, I argued, the rise and decline of this brand of argumentation in the courtroom debate over same-sex marriage is not merely a problem for religious opponents of same-sex marriage; it reveals a series of deep-seated tensions endemic to American law and, perhaps, to secular law in general. The unfolding of Obergefell has served to roundly validate the trajectory and the concerns outlined in my precious article. Given the fact that this case is likely to stand as the final verdict on the argument for traditional marriage, it is useful to consider the particular ways in which Obergefell so aptly exemplifies this topic. In this article, I will highlight the manner in which, in the course of navigating the debate over same-sex marriage in Obergefell, the U.S. Supreme Court simultaneously demanded and rejected precisely the brand of argumentation that I described in my previous article. In so doing, it not only handed a definitive defeat to a legal strategy that has been a mainstay of contemporary traditional marriage advocacy, but it also reproduced and even exacerbated a number of the deep-seated tensions that I have claimed rest at the heart of our liberal democratic legal system.