In the majority opinion, Justice Anthony Kennedy recounted the history of marriage in brief, emphasizing that even though the institution has existed for millennia and across civilizations, “it has not remained static over time.” He points to the evolution of marriage beyond the law of coverture, which for centuries reinforced the wife’s legal subordination to the husband (the idea being that her identity was “covered” by his). “As women gained legal, political, and property rights,” Justice Kennedy wrote, “and as society began to understand that women have their own equal dignity, the law of coverture was abandoned.”
He goes on to explain that even after coverture laws were taken off the books, “invidious sex-based classifications in marriage remained common through the mid-20th century” and “[t]hese classifications denied the equal dignity of men and women.”
One state’s law, for example, provided in 1971 that “the husband is the head of the family and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit.”
Such laws might have remained on the books had feminists not stepped up to argue against them and to promote greater equality for women. Without using the word feminism, he contends that the women’s movement profoundly changed the meaning of marriage by exposing the shortcomings of traditional gender roles:
[N]ew insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged. To take but one period, this occurred with respect to marriage in the 1970s and 1980s.
As Justice Kennedy emphasizes, the changes made to the institution of marriage over the course of the 20th century were profound, producing “deep transformations in the structure of marriage” and “affecting aspects of marriage once viewed as essential.” And these redefinitions of marriage have been for the good:
These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a nation where new dimensions of freedom become apparent to new generations.
This decision is an important step forward for gay civil rights, the culmination of decades of struggle. Expanding marriage rights to lesbians and gay men will help to right longstanding injustices. As Justice Kennedy explicitly notes, lesbians and gays have suffered from discrimination and hostility; he faults the marriage bans for causing harm to gay couples and their children. Gay-headed families, he says, have been “denied the constellation of benefits that the states have linked to marriage” and “consigned to an instability many opposite-sex couples would find intolerable.”
In decreeing that marriage is a fundamental right, Justice Kennedy stresses that there is no such thing as same-sex marriage as something different from opposite sex marriage. “Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.”
As I have argued for years, marriage equality continues the feminist transformation of the institution by allowing for greater freedom of expression outside of traditional gender roles. With wife/wife and husband/husband marriages, we have begun to redefine the terms within marriage in ways that will expand rather than restrict options for personal choice in our home lives. The word “wife” in particular is being liberated from a long history as a subordinate term (as in the traditional pairing of “man and wife”). And “spouse” will become an even more gender-neutral term. New traditions will arise with a more open field of possibilities—in all 50 states.
Marriage is not about proscribed roles for women and men. It’s about love. The heart-rending conclusion to the majority opinion sums up the personal and emotional meaning of this decision.
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were. 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.
Ultimately, though there’s still much work to be done to secure full legal equality for the LGBTQ community, this historic ruling is a victory for equal rights. As President Obama eloquently stated,
This decision affirms what millions of Americans already believe in their hearts. When all Americans are treated as equal, we are all more free.
Let the wedding bells—and freedom—ring!
Dedicated to my beloved co-editor and friend, Michele Kort, senior editor of Ms. for the past 13 years.