Is marriage equality a conservative victory?
Obergefell and the Enduring Legacy of Family Values
Like many gay people, I found out about the Supreme Court’s ruling that same-sex marriage is a constitutional right through text messages from friends and family members. People from all across the country wrote or called to congratulate my husband and me, expressing optimism for what the court’s decision revealed about American acceptance. Having been legally married in both New York State and the United Kingdom for over two years, my husband and I both felt the gravity of the decision and the impact it would have on many people’s lives, especially people in states where government officials refused to provide even a modicum of recognition to same-sex couples. My elation was tempered, however, by a feeling that the court’s decision simply reaffirmed the central place of the family in contemporary politics.
Most accounts of “family values” politics start with Ronald Reagan’s presidency. It is a truism of modern political history that Reagan’s rise was fueled by conservative activists who centralized the family in their political rhetoric. The discourse about “family values” did not recede after The Gipper left office, however. Debates around family life that roiled during the Reagan years have largely been settled in favor of the Republicans. Throughout the 1990s, and especially during his reelection campaign in 1996, President Clinton tied himself in knots with a “triangulated” strategy of making conservative policies, from welfare reform to banning gays from military service, appeal to liberal voters. In many ways the Democratic Party has never recovered from this rightward shift initiated by Clinton, as evidenced by the stress President Obama places on “responsible fatherhood” as a key to ending poverty.
In 1996, gay marriage seemed more like a punch line than a credible political movement. Just weeks before the presidential election, Congress overwhelmingly passed the Defense of Marriage Act (DOMA). The law was a quick response to the Hawaii Supreme Court’s ruling that denying same-sex couples the right to marry was unconstitutional. The Hawaii court decision sent the nation into a moral panic, as domino theories about state-sanctioned polygamy, incest, and pedophilia abounded. Same-sex marriage was seen as a gateway drug, a blatant affront to heterosexual unions, and a sure sign of the decline of civilization. Prohibiting gay and lesbian couples from marrying seemed like the only way to protect the most sacred institution in American life: the family. In addition to the federal DOMA, states rushed to pass their own versions. These DOMAs, as well as anti-sodomy laws (which would remain constitutional until 2003) effectively cordoned off the heterosexual family as an area that would be safe from the expansion of gay rights. Clinton knew DOMA was a bad law, but he signed it anyway.
Since then, the activist thrust of the mainstream gay rights movement has centered on the repeal of DOMAs. The federal DOMA was ruled unconstitutional in 2013 in United States v. Windsor. Obergefell applied the argument of Windsor to invalidate state-level bans as well. Justice Kennedy, writing for the majority, explained that gay marriage affirms rather than weakens the sanctity of marriage:
As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
The court’s rationale for allowing gays to marry, then, stems not from the need for new and flexible familial arrangements to match diversifying family forms, but instead from the timelessness and historical significance of the institution of marriage. This argument effectively confirms the anti-equality position that marriage is a sacred and protected space.
The expansion of marriage rights to gays and lesbians is a small victory in an uphill battle when voting rights are restricted and corporate personhood takes on new and frightening dimensions. We would do well to recall that Justice Kennedy, the swing vote on the court and the deciding fifth vote for both Windsor and Obergefell, has been a crucial conservative voice in cases that have moved the Roberts court further to the right. Kennedy wrote the majority decision in the 2010’s Citizens United case, which permitted corporations to spend unlimited money to influence elections. Kennedy’s support for corporate free speech as well as gay marriage stands as a stark reminder that his is a fundamentally conservative jurisprudence.
The strategy of pursuing marriage has not been without its critics, and the debate has divided moderate gays from queer activists who view the fight for marriage as a distraction from more pressing social justice concerns. To these activists, marriage is a disavowal of the spirit of gay liberation, a movement committed to imagining new worlds, new possibilities, and new intimate relationships. Despite these important debates about the relationship between sexuality and politics, there can be no doubt that with the decision in Obergefell, pro-marriage activists have achieved a victory that seemed impossible just a few years ago. The queer critique of marriage is correct in arguing that the family is a conservative institution, but this inherent conservatism has never meant family isn’t important for many people, myself included.
Given the dynamics of contemporary gay politics, Obergefell offers a mixed bag of political possibility. On the one hand, it represents a monumental rethinking in federal terms of what counts as a family.Windsor paved the way by ruling DOMA unconstitutional, but this ruling extends constitutional protection to all couples, regardless of gender, who want to enter into a committed relationship. Given that DOMA was passed less than 20 years ago with strong majorities in both Houses of Congress, this is a remarkable success.
On the other hand, the decision further sanctifies the family unit, an institution that is already held in biblical regard in American politics. This has the effect of confirming the rationale that inspired DOMA rather than overturning it. This decision effectively makes life more difficult for those people who chose not to settle into monogamous long-term relationships. According to Obergefell, those folks are “condemned to live in loneliness,” doomed to live a life that is demonized not just by society, but by the state as well.
Family is a potent source of meaning for many people as well as an important element of state policy. This dual nature means that family will always be politically fraught because any family policy necessarily has to define precisely for whom it speaks, that is, which families count. Obergefell is surely a step in the right direction of inclusiveness and fairness, but I sincerely hope it does not permit married gay people to think that our work towards justice ends at the altar.