Is the question of same-sex marriage over? The Supreme Court has ruled in Obergefell v. Hodges that same-sex marriage is legal and must be recognized across the United States. Does that settle the matter? Actually, no. The Supreme Court has made other definitive decisions which have been later overturned because the assumptions from which those decisions were made were false. Last Monday marked the 160th anniversary of Dred Scott v. Stanford, a seven to two decision by the U.S. Supreme Court that African-Americans whose ancestors were slavers were ineligible to be considered people of the United States. This May will mark the 90th anniversary of the famed Buck v. Bell decision by the Court, where they authorized the forced sterilization of people.
So, what are the assumptions underlying the Obergefell decision? One is that the state has a role in defining marriage.1 Certainly, governments have traditionally recognized marriage and crafted legislation that affects its citizens on the basis of their marriage status, but do governments have the authority to define the very essence of what constitutes marriage? Just what is marriage and who gets to define its terms?
How Do We Begin to Understand Marriage in Relation to Law?In the debate over same-sex unions, it has been popular to place the "what is marriage" question into a dichotomy. Most people ask whether marriage is something invented by the state or something that stands objectively outside the state. In reality, though, there are three categories societies rely upon to understand and help in the civil interaction between its individuals: societal creations, societal conventions, and natural laws.
Societal creations are those things that are invented by the state. Examples include which is the "right" side of the road to drive on, the legal recognition of corporations as individuals for legal contracts, and the postal system. Each of these are creations of the state and each can be redefined or even abolished through legislation.
Natural laws, on the other hand, are recognized by the state but sit above the state. The right to life, the right practice one's religious beliefs without undue government interference, the right to not be enslaved, and the right to the fruits of one's labor are things that government doesn't give us; we hold them inherently as a result of being human. While governments can pass legislation that denies us our rights, the rights themselves don't go away. They are simply being infringed upon. Just as the slavery issue proved, even if the law states slavery is legal, that doesn't eliminate the right to freedom for the slave. It just means the law is corrupt.
Societal Conventions Differ from Societal CreationsBut there's a third aspect to societal interactions: societal conventions. These are things that naturally come out of civil human interaction. David Hume defined convention as "a sense of common interest; which sense each man feels in his own breast, which he remarks in his fellows, and which carries him, in concurrence with others into a general plan or system of actions, which tends to public utility."2I think that's right. Shows of respect, for example, are ubiquitous across all cultures. However, what counts as a sign of respect can differ widely, like bowing before a company president versus simply shaking his hand.
The wedding ring is another convention we use to communicate marriage. Not taking another person's spouse would fall into natural law, but the way to recognize a person as married can and has differed in different societies, with the wedding ring serving as a societal convention that is recognized across Western culture.
Is Marriage a Creation, a Convention, or a Reflection of Nature?Justice Kennedy in his majority opinion seems to place marriage in the category of a societal convention. He said, "The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society." Here, Kennedy is I think purposely obtuse. What does he mean by "the ancient origins of marriage?" The coupling of men and women to produce children is older than human history itself. It's ingrained into our biology. Does that mean every sexual encounter is tantamount to marriage? Of course not. However, marriage has always been seen as the intentional joining of two people of the opposite sex presumably for life, whether or not any government exists to recognize it as such.
Kennedy is also right to say that marriage has not stood "in isolation from developments in law and society." But that doesn't mean marriage itself is a societal convention. While the ring that helps people recognize marriage is a convention, the marriage that it symbolizes existed before rings. It existed before marriage certificates. Marriage is actually a reflection of nature, and to degrade it to a social convention that can be changed or redefined undercuts the essence of what marriage actually is.
So, what about those "developments in law and society" to which Kennedy refers? He rightly raises the point that arranged marriages are no longer the norm for Western societies. More importantly, he points out law of coverture are no longer recognized, either. Is this an example showing how legal recognition changed marriage itself? Do these changes show that marriage itself can evolve? No, for these do nothing to change the essence of marriage, which is the only recognized institution humanity has ever had to properly rear the next generation. Let me state that again. There exists no other institution that human beings recognize for the proper creation and rearing of children than man-woman marriage.
Governments cannot define marriage because governments didn't create marriage. Governments can only recognize marriage as the institution rooted in nature that it is. Like other natural laws, governments can choose to ignore what marriage is or choose to abuse or withhold it from its citizens. Just because the Supreme Court said that Dred Scott had no inalienable rights because his ancestors were slaves or Carrie Buck had no right to protest her forced sterilization, doesn't mean those rights didn't exist. It just meant the Court was in grievous error.
In my next article, I'll go a little further into the distinction between creations, conventions, and natural laws, demonstrating that even though governments may pass laws with respect to aspects of marriage, it in no way proves that marriage itself can be defined by law.
2. Hume, David. "Appendix III. Some farther considerations with regard to Justice." An Enquiry into the Principles of Morals. The University of Adelaide Library. 26 Feb. 2014. Web. 13 Mar. 2017. https://ebooks.adelaide.edu.au/h/hume/david/h92pm/appendix3.html.