ArticlesVolume 30, Number 2 (2015)

The Freedom to Choose to Marry

Ruth Colker

Distinguished University Professor and Heck-Faust Memorial Chair in Constitutional Law, Moritz College of Law, The Ohio State University

 

Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other

–Obergefell v. Hodges1

Marriage is the batterer ‘s gateway to establishing power over the family finances and property.

–Dana Harrington Conner2

Introduction

Over the last several decades, the Lesbian, Gay, Bisexual, and Trans (LGBT)3 community made the political decision to push for “marriage equality” and the “freedom to marry,” rather than “same-sex” marriage or “homosexual” marriage.4 Like the decision that Justice Ruth Bader Ginsburg made in the 1970s, to refer to “gender-based” equality rather than “sex-based” equality, this change in terminology tried to focus society on the concept of “equality” rather than “sex”5 and the category of “marriage” rather than “homosexual marriage.”6 Although this change in terminology cannot, alone, account for changes in public opinion, it does coincide with increasing public acceptance of individuals having the freedom to marry the person they love without regard to sex or sexual orientation.7

Thus, when the Supreme Court announced its decision in Obergefell v. Hodges,8 the leading LGBT rights organizations applauded a victory for “marriage equality”9 or the “freedom to marry.”10 Partially reflecting this change in terminology, the Obergefell Court described the victory as one for “same-sex marriage,”11 the “freedom to marry,”12 and the “right to marry,”13 although it never mentioned the term “marriage equality.”

But what is “marriage equality” and the “freedom to marry”? How does Obergefell relate to those two constitutional protections? This Article argues that the Obergefell decision reflects an important advance for some aspects of marriage equality and the freedom to marry,14 while also insufficiently developing the freedom to choose to marry. Nonetheless, the roots of the freedom to choose to marry can be found in the precedent underlying Obergefell as well as in some aspects of the decision itself.

 

This work licensed with a Creative Commons Attribution License.


  1.  Obergefell v. Hodges, 135 S. Ct. 2584, 2600 (2015).
  2. Dana Harrington Conner, Financial Freedom: Women, Money, and Domestic Abuse, 20 Wm. & Mary J. Women & L. 339, 363 (2014).
  3. Although I use the terminology “LGBT,” I recognize that the equality rights of trans or bisexual individuals have received comparatively less attention by the LGBT community than the rights of gay men and lesbians. Elsewhere, I have discussed the problem of bisexual invisibility. See Ruth Colker, Hybrid Revisited, 100 Geo. L.J. 1069 (2012). The limited implications of the marriage equality movement to bisexual and trans individuals are beyond the scope of this paper, but I use the phrase “LGBT” because that is the term that the gay rights community typically uses for itself at this time.
  4. Although it is difficult to document this transition, the language of one leading writer in the field is instructive in seeing the transition to the use of the term “marriage equality.” In 1993, Professor William Eskridge published an article entitled “A History of Same-Sex Marriage.” See William N. Eskridge, Jr., A History of Same-Sex Marriage, 79 Va. L. reV. 1419 (1993). In 2015, he published a blog entry in which he talked about “marriage equality.” See William N. Eskridge, Jr., Symposium: Original Meaning, Public Deliberation, and Marriage Equality, Scotusblog (Jan. 17, 2015, 11:52 AM), http://www.scotusblog.com/ 2015/01/symposium-original-meaning-public-deliberation-and-marriage-equality-2/ [http://perma.cc/VP4S-Z3XF].

    One of the only discussions of the appropriate terminology in a judicial decision appeared in a Hawaii decision and was repeated by one of the Justices in a Massachusetts decision. Massachusetts Chief Justice Marshall explained:

    We use the terms ‘‘same sex’’ and ‘‘opposite sex’’ when characterizing the couples in question, because these terms are more accurate in this context than the terms ‘‘homosexual’’ or ‘‘heterosexual,’’ although at times we use those terms when we consider them appropriate. Nothing in our marriage law precludes people who identify themselves (or who are identified by others) as gay, lesbian, or bisexual from marrying persons of the opposite sex.

    Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 953 n.11 (Mass. 2003) (citation omitted).

    In 1993, the Hawaii Supreme Court already understood the importance of emphasizing the concept of “equality” rather than the concept of “sex.” It said:

    “Homosexual” and “same-sex” marriages are not synonymous; by the same token, a “heterosexual” same-sex marriage is, in theory, not oxymoronic. A “homosexual” person is defined as “[o]ne sexually attracted to another of the same sex.” 16 Taber’s Cyclopedic Med. Dictionary 839 (1989). “Homosexuality” is “sexual desire or behavior directed toward a person or persons of one’s own sex.” Webster’s Encyclopedic Unabridged Dictionary of the English Language 680 (1989). Conversely, “heterosexuality” is “[s]exual attraction for one of the opposite sex,” Taber’S CyCLopediC med. diCTionary at 827, or “sexual feeling or behavior directed toward a person or persons of the opposite sex.”Webster’s Encyclopedic Unabridged Dictionary of the Eng. Language at 667. Parties to “a union between a man and a woman” may or may not be homosexuals. Parties to a same-sex marriage could theoretically be either homosexuals or heterosexuals.

    Baehr v. Lewin, 852 P.2d 44, 51 n.11 (Haw. 1993) (as clarified on reconsideration) (May 27, 1993).

  5. See Catherine Crocker, Ginsburg Explains Origin of Sex, Gender Justice: Supreme Court’s Newest Member Speaks at Her Old Law School and Brings Down the House with Her History Lesson About Fighting Bias, L.a. Times, Nov. 21, 1993, http://articles.latimes.com/1993-11-21/news/mn-59217_1_supreme-court [http://perma.cc/X8NN-FN96] (“I owe it all to my secretary at Columbia Law School, who said, ‘I’m typing all these briefs and articles for you and the word sex, sex, sex is on every page,’” Ginsburg said. “‘Don’t you know that those nine men [on the Supreme Court]—they hear that word, and their first association is not the way you want them to be thinking? Why don’t you use the word gender? It is a grammatical term and it will ward off distracting associations.’”).
  6. The Gallup Organization changed the wording of its questions about same-sex marriage while public perceptions about the institution were changing. From 1996 to 2005, it asked: “Do you think marriage between homosexuals should or should not be recognized by the law as valid, with the same . . . as traditional marriages?” In 2006, it changed the wording to “same-sex couples” rather than “homosexuals.” See Gay and Lesbian Rights, Gallup, http://www.gallup.com/poll/1651/gay-lesbian-rights.aspx [http://perma.cc/49M6-AYHT].
  7. See Marriage, Gallup, http://www.gallup.com/poll/117328/marriage.aspx [http://perma.cc/D9RH-EMYQ] (last visited Nov. 12, 2015) (percentage of public in a Gallup Poll who said same-sex marriage should be valid increased from twenty-seven percent in 1996 to fifty-five percent in 2014; the poll changed the language to refer to “same-sex couples” rather than “homosexuals” in 2006).
  8. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
  9. James Esseks, All Eyes on Justice Kennedy, ACLU: Speak Freely (May 1, 2015, 12:30 PM), https://www.aclu.org/blog/speak-freely/all-eyes-justice-kennedy [http://perma.cc/SY27-NE92] (referring to “marriage equality”); Love Wins, Human Rights Campaign, http://www.hrc.org/campaigns/stand-for-marriage [http://perma.cc/AS52-R7S4] (last visited Nov. 12, 2015) (referring to “marriage equality”); Sign Our Thank You Message, ACLU, https://action.aclu.org/secure/sign-our-thank-you-message?ms=web_150626_scotus_mar [http://perma.cc/B6XX-JYHA] (last visited Nov. 12, 2015) (referring to “marriage equality”).
  10. Marriage, Relationships and Family Protection, Lambda LegaL, http://www.lambdalegal.org/issues/marriage-relationships-and-family-protections [http://perma.cc/2BKC-VT9T] (last visited Nov. 12, 2015) (referring to “freedom to marry”).
  11. See, e.g., Obergefell, 135 S. Ct. at 2594. The “lower” courts have also vacillated in their use of the term “marriage equality” in recent cases involving same-sex marriage. Compare Kitchen v. Herbert, 755 F.3d 1193, 1198 (10th Cir. 2014) (referring to case as a “marriage equality appeal”), with Deboer v. Snyder, 772 F.3d 388, 396 (6th Cir. 2014) (referring to case as about “same-sex marriages”).
  12. See, e.g., Obergefell, 135 S. Ct. at 2603.
  13. See id. at 2593, 2597, 2598, 2599, 2603. The Obergefell court does not distinguish between the “freedom to marry” and the “right to marry.”
  14. This Article uses the terms “freedom” and “right” interchangeably because the Court has used those terms interchangeably in its marriage decisions. See Obergefell, 135 S. Ct. at 2593, 2597, 2598, 2599, 2603. As Professor John Garvey has argued, “freedom of choice is at the heart of the right to marry.” John H. Garvey, Freedom and Choice in Constitutional Law, 94 Harv. L. Rev. 1756, 1761 (1981). While there may be some important differences between a “freedom” and a “right,” those differences are beyond the scope of this Article.