{"id":2308,"date":"2015-07-03T09:05:30","date_gmt":"2015-07-03T15:05:30","guid":{"rendered":"http:\/\/admin.patheos.com\/blogs\/janetheactuary\/?p=2308"},"modified":"2015-07-03T09:05:30","modified_gmt":"2015-07-03T15:05:30","slug":"was-obergefell-inevitable-and-what-next","status":"publish","type":"post","link":"https:\/\/www.patheos.com\/blogs\/janetheactuary\/2015\/07\/was-obergefell-inevitable-and-what-next.html","title":{"rendered":"Was Obergefell inevitable? – and what next?"},"content":{"rendered":"\n<\/head>

Was it simply inevitable that the Court would have decided Obergefell as it did?<\/p>\n

Three thoughts:<\/p>\n

1) We talk about Kennedy and his opinion and its lack of substance, and feel as if the decision hinged on the personal opinion of one man. \u00a0But what would Ginsberg\u2019s opinion have been? \u00a0I can picture it now, especially given her fans who portray her as a crusader for justice of rock star proportions:<\/p>\n

Every right-thinking person knows in their gut that same-sex couples are just as loving as opposite-sex couples. \u00a0Everyone who knows these couples knows that they\u2019re just as deserving of legal recognition as everyone else \u2014 especially because the same-sex couples I know are upper middle class and respectable, but I\u2019ve seen lots of really icky white-trash opposite-sex couples in the news. \u00a0It is simply common sense that these couples be afforded the full protection of the legal status of marriage across all the states, and hence, it is so ordered.<\/p><\/blockquote>\n

2) The prime difficulty in the situation prior to last week was the matter of differences between states, and I did pretty much expect that the court would take the half-way position that even a non-SSM state was required by the constitution to recognize a marriage that was validly performed in another state,\u00a0as a sort of halfway point that on the face of it was bland, boring constitutional law, even as its effect would have been just as far-reaching.<\/p>\n

3) So long a the question is \u201cis there<\/strong> a right to marry someone of the same sex?\u201d it\u2019s possible to say, \u201cno, of course not.\u201d \u00a0In a recent article, the National Review lists<\/a> all manner of things thatAmericans have tried to claim as \u201crights\u201d only to lose at the Supreme Court.<\/p>\n

But once the majority, or even a large minority, is persuaded that there is such a right (whether based on Kennedy\u2019s fluff about identity and a right to alleviate loneliness \u2014 see Ann Althouse\u2019s summary<\/a>\u00a0\u2014 or a general libertarian approach that human rights are expansive, and only limited by the extent that one harms another), then it\u2019s very difficult to make headway against this construction by raising issues of balancing harms.<\/p>\n

In court discussions, and in public debate, the pro-SSM side, and the courts, and others who deem themselves arbiters of the debate have set up a very narrow set of parameters: \u00a0because denial of SSM usurps a claimed \u201chuman right,\u201d any claimed harm must be directly caused by the recognition of SSM, or of a particular SSM, as a legal status.<\/p>\n

Hence, harm to children of SS couples is discarded because (a) the children of SS couples are presumed to exist with our without legal recognition, and (b) it\u2019s difficult or impossible to distinguish between the impact of SS parenting, vs. other factors (e.g., prejudice in society). \u00a0Harm to society more generally isn\u2019t provable because no one can directly separate out and quantify the influence of SSM vs. other societal trends, nor prove a direct harm to a particular individual, or prove that, in a legal sense, there\u2019s been any \u201charm\u201d at all \u2014 such as, for example, with respect to sexual exclusivity, where various SSM advocates openly say that their objective is to move society towards a definition of marriage that has nothing to do with sexual exclusivity. \u00a0 If a generation from now, we\u2019ve reached a point where someone who expects sexual exclusivity from his\/her partner is considered to be as inappropriately possessive as the inappropriately-conditioned character in Brave New World<\/em> \u2014 well, we can\u2019t undo things quite so easily, but in the meantime we get laughed out of town.<\/p>\n

What about harm with respect to polygamy? \u00a0Here people feel much freer to bring forth hypothetical and indirect concerns: \u00a0the young FLDS girl whose leaders redouble the pressure\/force they use to compel her to submit, now that polygamy is legal, and the\u00a0potential, in general, for unhappiness in such marriages\u00a0both ignore the fact that this is all about adults consenting, or withdrawing their consent in the future. \u00a0And the hypothetical difficulty low-status individuals would have of finding a mate? \u00a0That seems just as indirect as the concerns about SSM.<\/p>\n

And these harms are genuine, so long as we\u2019re having a discussion about preferred policies. \u00a0But the key question here, too, will be whether the polys can convince courts that they have a right to legal recognition. \u00a0If they do convince the \u201cminority that matters\u201d that they have this right \u2014 whether because they believe their religion compels them to, or because they have a \u201cpolyamorous orientation\u201d or on general liberty grounds \u2014 then it seems unlikely that this list of harms could win a balancing test.<\/p>\n

What next?<\/strong><\/p>\n

Will gay men take the next step of demanding a \u201cright\u201d to children, and claim that laws against surrogacy and \u201cchild manufacture\u201d violate this right? \u00a0Will religious liberty be imperiled, will public school children be indoctrinated, will Dan Savage convert opposite-sex couples of the virtues of being monogam-ish, will couples everywhere take their cues from this debate that marriage is reserved for when you want social affirmation of your relationship with your soulmate, and when you\u2019re financially set enough for a big reception, maybe after you\u2019ve finished putting your kids through college, or at least daycare?<\/p>\n

Dunno.<\/p>\n

Retirement experts like to talk about \u201cnudges\u201d \u2014 about constructing retirement plans, and their legal structure, in a way that \u201cnudges\u201d people into making the right decisions with respect to retirement planning. \u00a0With respect to childrearing, we\u2019ve lost that \u201cnudge\u201d towards raising children by a mom and a dad, within a marital commitment. \u00a0The law is officially indifferent as to how children are raised. \u00a0That\u2019s the simple reality. \u00a0What to do, then, with the various studies that say that children do better with a mom and a dad? \u00a0Are we all just uselessly \u00a0talking at each other? \u00a0How do we persuade prospective mothers not to get intentionally (or semi-intentionally) pregnant when there\u2019s no dad in the picture?<\/p>\n

Dunno.<\/p>\n

Here\u2019s one thought I did \u00a0have, though: \u00a0if there is a \u201cright\u201d to be married, then does that open up opportunities for pushing back against welfare benefits aimed (solely) at\u00a0single mothers? \u00a0If a single, cohabitating\u00a0mother is eligible for child care benefits, for instance, that she loses if she marries, is her \u201cright to marry\u201d being taken away from her?<\/p>\n<\/body><\/html>\n","protected":false},"excerpt":{"rendered":"

Was it simply inevitable that the Court would have decided Obergefell as it did? Three thoughts: 1) We talk about Kennedy and his opinion and its lack of substance, and feel as if the decision hinged on the personal opinion of one man. \u00a0But what would Ginsberg\u2019s opinion have been? \u00a0I can picture it now, […]<\/p>\n","protected":false},"author":2209,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-2308","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"yoast_head":"\nWas Obergefell inevitable? - and what next?<\/title>\n<meta name=\"description\" content=\"Was it simply inevitable that the Court would have decided Obergefell as it did? 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