Supreme Court Justice Anthony Kennedy’s opinions in gay rights cases have always reached for rhetorical heights, and some critics confuse that with mushy thinking. But his decision in the same-sex marriage case Obergefell v. Hodges is compelling precisely because it avoids some of the cheap clichés that have marked many prior lower court opinions declaring a right to same-sex marriage.
Justice Kennedy, writing for the Court, did not claim that opponents of same-sex marriage are merely bigoted. To the contrary, he acknowledged that many opponents “reach that conclusion based on decent and honorable religious or philosophical premises.” Justice Kennedy did not hold that bans on same-sex marriage are simply “irrational” as some other judges have. Instead, he relied on the fundamental right to marry.
Other courts had only thought it possible to uphold a right to same-sex marriage by hollowing out the significance of marriage itself. But Justice Kennedy did just the opposite. Thus, while the Massachusetts Supreme Judicial Court insisted that civil marriage is a “wholly secular institution,” a mere civil contract, Justice Kennedy emphasized the “centrality of marriage to the human condition” as reiterated in “untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths.”
Similarly, Justice Kennedy did not dismiss the link between marriage and procreation. Instead, he held that one reason “for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education,” while also insisting that the exercise of the right in particular cases cannot be conditioned on the ability or willingness to have children.
More generally, Justice Kennedy argued, “Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect — and need — for its privileges and responsibilities.” Similarly, near the end of the opinion, he wrote, “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.”
This is, in short, in many of the best respects, a deeply “conservative” opinion, upholding not only the right to same-sex marriage but the abiding constitutional, cultural, religious, and moral significance of marriage itself.
Perry Dane is a Professor of Law at Rutgers School of Law – Camden. His prior writings on same-sex marriage include “Natural Law, Equality, and Same-Sex Marriage.”