by Sher Afgan Tareen
The recent 5-4 ruling in Obergefell vs. Hodges raised Justice Anthony Kennedy to a venerable stature amongst those who vigorously celebrated the Supreme Court’s decision. In arguing why same sex marriage ought to be a constitutional right, Justice Kennedy joined Plato, Socrates, and Diotima by sharing his reflections on love. He extolled marriage as a “union” more profound than any other form of social assembling, an embodiment of “the highest ideals of love, fidelity, devotion, devotion, sacrifice, and family.” He suggested that perhaps this love may “endure even past death.” He assigned marriage to a set of “freedoms” that one may actualize through this bond such as “expression, intimacy, and spirituality.” Lastly, he affixed certain qualities such as “dignity” and “autonomy” upon the married couple who, according to him, make such “profound choices.”
Were these reflections on marriage and love necessary? Or would it have been enough for Kennedy to reiterate my aunt’s analysis: it’s all about receiving tax exemptions! Based on the positive circulation of his defense on facebook statuses, Kennedy deserves a pat on his back. Yet his defense underscores the obstinance of a logic of happiness that relies on the normativity of heterosexual marriage and the indeterminate boundary separating religion from politics through which secular power ironically secures itself. In what follows, I deconstruct Kennedy’s love argument. My response comes in two parts: one deals with the affect of sexuality and the second with the problem of American secularism.
Kennedy developed his reflections on marriage and love as he sought to assuage the anxieties of his fellow conservative judges that same sex marriage would offend and disrespect heterosexual marriage. Despite acknowledging their concerns, Kennedy promised that same sex couples do not disrespect heterosexual marriage. To the contrary, “their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.” To assume so would be to “misunderstand these men and women.”
Kennedy’s apologia highlights the way in which the debate over same sex marriage was framed around the politics of feelings. Same sex marriage announces a broadening of the horizons of imagining who can and cannot marry but same sex marriage must make this announcement without insulting the feelings of heterosexuality, its precedence. Celebrating same sex marriage words must not translate into rejecting the preeminence of heterosexual marriage; happiness must not turn into mockery. Same sex marriage in other words must not muster the affective force to cause and create disrespect.
The second part of my criticism deals with the question of secularism. Quite often, the United States Supreme Court becomes the site where debates over the nature of American secularity transpires. These debates revolve around assessing the line that separates religion from politics. Liberals rue the decline in progress by bemoaning how a Supreme Court led by Republican appointees fulfills the wishes of religious conservatives. Most noticeably, last year the Hobby Lobby case caused immense discomfort to liberals who, despite a well archived history of how Corporate personhood developed in America, were stunned that the Supreme Court allowed corporations led by religious leaders to adhere to their religious principles and not be forced to pay for insurance coverage of contraception.
Conservatives create the caricature of liberal activist judges who revise the Constitution as they please without giving a damn about the overarching religious principles that ground American democracy and secularity. For instance the attorney General of Texas, Ken Paxton, recently compared the same-sex marriage ruling to Row V. Wade and then proceeded to affirm that changes in law (he means coerced and unprincipled) can neither change “the simple truth” that marriage is between a man and a woman nor can it “change our collective resolve that all Americans should be able to exercise their faith in their daily lives.”
These two distinct anxieties share a consensus that the defense of American secularism requires an incessant policing of the boundaries separating religion from politics. If that policing unravels, the freedom granted by American secularity will be imperiled: from the freedom of the women to use contraception to the freedom of Jane and Joe to exercise their faith. Neither of these anxieties question the idea that religion is a source of good but both maintain a separation between the private domain of religion and the public domain of politics to protect the freedoms offered by American secularism. In his book Questioning Secularism: Islam, Sovereignty, and the Rule of Law in Modern Egypt, Hussein Agrama argues that Egypt is a deeply secular country not because it keeps religion out of politics but rather because it consistently draws and redraws the boundary between religion and politics. Agrama suggests that in order to measure secular power (the power of the sovereign modern nation state to manage its diverse population), we ought to pay attention to the paradox of how secular power mobilizes itself by never truly settling the question of where one ought to draw the line between religion and power. Secular power in other words is a power that undermines secularism’s normative claim (that religion is outside of politics) and ironically works precisely by making religion an object of politics.
Agrama’s theoretical contributions are quite helpful in thinking about conceptualizing Obergefell vs. Hodges as a secular ruling. Obergefell vs. Hodges fails to offset previous legal rulings that empowered the state to define marriage as a union between a man and a woman and thus politicized religion to deem same sex marriage illegal. It also politicizes religion to legalize same sex marriage. And that’s precisely why I read it as a secular ruling.
Mr. Kennedy’s love argument includes a list of claims such as “marriage embodies a love that may endure past death” and that marital union makes “two people something greater than once they were,” which can not be proven by citing legal precedents. His statements resonate deeply with Christian theological reflections on marriage. The notion of love enduring death even seems to harken the Mormon notion of a celestial marriage. Whether Kennedy was cognizant of these Christian undercurrents to his arguments is a question I can not answer. Yet he does offer a compelling recipe for defending same sex marriage through a deeply Christian, heterosexual imaginary. The love celebrated today must respect the love which hated it yesterday.