Monthly Archives: May 2015

On Same-Sex Marriage Part 4: Love, Emotion and Commitment

I’m currently swamped with law school. I have another research paper coming up and midterms. I also have have the Bar to prepare for and final exams will be coming up quicker than I’d like. I don’t want to neglect my blog so I decided to post a legal paper I wrote for class last year. I edited and formatted it for this blog. I also took out a good chunk of the more technical discussions of constitutional law and rewrote certain sections to make more sense for those who don’t speak legalese. Enjoy. I’ll be around for discussion and comments. I’m also ready for the inevitable charges of homophobia and bigotry; wouldn’t miss it for the world.


Can I put a ring on my daughter if I like her?

Can I put a ring on my daughter if I like her?

I attempted to clarify what little guidance the Supreme Court gives on marriage laws in my last post. We ended up saying that a person as the right to marry as long as they marry within reasonable regulations. Reasonable regulations are any that do not absolutely prevent a class of people from getting married. Now, this may be a more complete statement, but there is still a major problem with it. What does it mean for a person to be married to another person? When we say that a person has a right to marry, what do we mean by marry. In order to help understand why certain restrictions might or might not be reasonable, it might be fruitful to look at what marriage is. For now we can say that to marry someone means to enter into a certain kind of relationship with them. What does this relationship look like? Let’s first see what the Supreme Court says about this.

According to the Supreme Court, marriage has always been important. As early as 1888, the Court described marriages as “the most important relation in life”.[1] The court, in discussing the nature of marriage, concluded that, despite similarities to private contracts, marriage is something more “than a mere contract”[2]. We see that, ss early as 1888, the SCOTUS defined marriage is the most important relationship in life that sometimes behaves like a contract but is more than a mere contract. However, this still doesn’t help us see what this relationship we call marriage really is.

Years later in Skinner v. Oklahoma, the court linked marriage with procreation when it stated that both are “fundamental to the very existence and survival of the race.”[3] The court in Loving v. Virginia picked up on this language while reaffirming marriage as a fundamental right [4]. About a decade later, the Court once again picked up on the language of Skinner and linked marriage and procreation together [5]. The court stated further that marriage was “the foundation of the family and of society” [6]. Here, the court in “reflects a generally procreative view of marriage” [7]. Up until 1965, the Supreme Court acknowledged that procreation and marriage are linked; marriage was seen as the kind of relationship oriented toward procreation.

This link between marriage and procreation didn’t survive. In 1965, marriage began to be viewed differently. The Court wrote that marriage is “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred… an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects” [8].  Absent from this description of marriage is any mention of procreation. Here, the court did not see procreation as an intrinsic characteristic of marriage; the idea of commitment and emotional support between people became more important.

Modernly, the Supreme Court has chosen to describe marriage as a public commitment between two people [9]. In fact, the reason same-sex couples can even attempt to claim a right to marriage is because “marriage has changed in ways that make it more hospitable to same-sex couples” [10].  How exactly? Well, marriage is now viewed as a kind of relationship based on public commitment and emotional support.

With such a definition, however, we immediately run into problems. Does this mean that any 2 people (or more, why should it be limited to 2?) that are publicly committed to one another and support each other emotionally can marry? There are many relationships that involve public commitment and emotional support that no state would recognize as a marriage. For example, suppose three really good female friends room together in an apartment. Because they have been close friends for a very long time, they support each other emotionally. The public also knows that they are committed to each other and would do anything for one another. Can these three friends apply for a marriage license and obtain government benefits? Well, if marriage is simply a relationship of public commitment and emotional support, then these female friends should be able to get get married and get government benefits.

Now, we might argue that the three women don’t love each other intimately and don’t deserve to get married. Only those who really love each other should be able to get married and get government benefits. Such a statement is ridiculous because it would require the government to investigate every person who wants to get married. Imagine going in to get a marriage license and being interrogated to prove that you and your loved one(s) really love each other. One small step for us and one giant leap for big brother.

This is the problem we run into. If the government can’t discriminate, then it would be required to give marriage benefits to any coupling that displayed public commitment and emotional support. Two males rooming together for college could theoretically have a claim marriage benefits. What about a soccer team? Teammates on a professional soccer team are publicly committed to each other and conceivably support each other emotionally, especially during more challenging games. If that’s the case, then would all the teammates on the team be eligible for marriage benefits? What about a father and daughter? Parents and their adult children can be publicly committed to each other and support each other emotionally. Why would they be prohibited from marrying?

Why should the government even give benefits people who are committed to one another and support each other? Furthermore, how is this different from a close friendship? Friendships are also emotional, public commitments between people; so if marriage is just a fancy way of saying friendship:

Why does the state not set terms for our ordinary friendships? Why does it not create civil causes of actions for neglecting or even betraying our friends? Why are there no civil ceremonies for forming friendships or legal obstacles to ending them.

The state has no reason to care about ordinary friendships. My question then, is what distinguishes friendships from the marriages if marriages are just relationships of public commitment and emotional support as the Supreme Court says?

[1] Maynard v. Hill, 125 U.S. 190, 205 (1888)

[2] Id. at 211

[3] Skinner v. Oklahoma, 316 U.S. 535, 541

[4] Loving v. Virginia, 388 U.S. 12 (1967)

[5] Zablocki v. Redhail, 434 U.S. 374, 384 (1978)

[6] Id.

[7] Douglas Nejame, Windsor’s Right to Marry, 123 Yale L.J. Online 219, 225 (2013)

[8] Griswold v. Connecticut, 381 U.S. 479, 486 (1965)

[9] U.S. v. Windsor, 133 S. Ct. 2675, 2689 (2013)

[10] Douglas Nejame, Windsor’s Right to Marry, 123 Yale L.J. Online 219, 235 (2013)