Magazine August 24, 2020, Issue

The Effects of Obergefell, Five Years Later

(Michael Rowley/Getty Images)
The Supreme Court’s gay-marriage decision undermined traditional notions about the differences between men and women

Ancient Mesopotamians were among the first peoples in recorded history to join in what modern man would recognize as marriage. At least 2,300 years before the birth of Christ, Mesopotamians were entering into unions broadly consonant with the committed, dyadic, heterosexual framework that has defined the institution for nearly four and a half millennia. 

To be sure, there were differences between Mesopotamian marriages and modern ones. Coercion was often involved, as women were frequently given into marriage by their father; polygamy, while exceptional, was tolerated in Sumerian society. The historian Karen Rhea Nemet-Nejat nevertheless insists that most Sumerian spouses “fell deeply in love” with each other and that love served a profound social function within the context of marriage. The late Near Eastern scholar Jean Bottéro described how, in Sumerian culture, marriage “channeled” the “amorous impulses” of the Mesopotamian people toward the “aim of ensuring the security of what was held to be the very nucleus of the social body — the family — and thus to provide for its continuity.”

As it would for millennia thereafter, marriage in Mesopotamia domesticated men, linked children to their biological parents, and laid the very foundation of social order. The Sumerian word for “love” is a compound verb, meaning literally “to mark off land”; husbands and wives in ancient Mesopotamia cordoned off a space for order, procreation, and purpose in a primeval epoch marked by chaos and violence. 

In Bottéro’s words, those who failed to marry were “looked upon as marginal, doomed to languish in an unhappy existence.” Such are the moral certainties of faraway times; indeed, the shame and stigma imparted to the unmarried is perhaps a best-abandoned relic of the Sumerian age. But theirs was a lesson that every society learns: Male sexuality is powerful, a powder keg of disorder primed to unleash itself on the society at large if left untamed. The marital bond — then as now — is among the most reliable means ever discovered of taming male sexuality. It is a fact borne out in both social science and history, true across time, space, and culture: Single men are disproportionately counted among the rapists, thieves, and murderers. It is single men who crowd the prisons, line the sidewalks, and fill the mental institutions. All know, deep down, what George Gilder observed: No one walks the streets of Chicago fearing an “attack by marauding bands of feminists, covens of single women,” or mobs of married men. It is those men with idle hands, loosed from all bonds of conjugal loyalty, who are given to crime, violence, and despair.

So, as the late anthropologist Margaret Mead argued, it is the “central problem in every society” to “define appropriate roles for its men.” For 4,300 years — from Mesopotamia up through the ages — marriage was among the principal means of defining appropriate male roles in civilized societies.

But societies change. Liberal societies in particular tolerate those who make different choices, buck traditional roles, and reject ancient promises; they tolerate those whose lives depart, in one way or another, from the inherited scripts of antiquity. As Philip Rieff observed in The Triumph of the Therapeutic, there comes a “breaking point” in the arc of a liberal society when its culture “can no longer maintain itself as an established span of moral demands,” its inherited myths and devotions impotent in the face of attractive novelties and revolutionary verve. In the American context, the 20th century was a famous moment of such upheaval — feminism, the gay-rights movement, the advent of oral contraceptives, and the sexual revolution more broadly took aim at the assumptions inherent in traditional understandings of marriage and family life. 

In the 20th century, feminists such as Kate Millett, Germaine Greer, Marilyn French, and Shulamith Firestone began crystallizing a critique of marriage that had percolated through feminist thought for centuries prior. Firestone claimed in 1970 that the institution of marriage “consistently proves itself unsatisfactory — even rotten” and that the nuclear family was “directly connected to — is even the cause of — the ills of the larger society.” More than a decade later, the influential feminist Andrea Dworkin called marriage “an institution that is extremely oppressive and dangerous for women,” a means of tacit cooperation with the patriarchal superstructure. Pamphlets were published on the evils of marriage, books written on its defects, and awards given in the halls of academia to the most polemical opponents of the nuclear family. Opposition to marriage became orthodox among many feminists and their academic allies.

Dworkin, Firestone, and other feminist thinkers were not delusional. They certainly were not unintelligent. They were responding to a plain fact about marriage, embedded in the institution from at least the days of cuneiform. The definition of marriage that prevailed for millennia
presupposed — and, indeed, required — sexual difference between partners. As Gilder observed, marriage tied the raucous male libido to the rhythms of female fertility; the dyadic union of husband and wife settled the precarious arena of reproduction within the confines of marital commitment. These were no accidental features of the institution — sexual complementarity went to the heart of marriage as a one-flesh union of man and woman as spoken of in Genesis and written into the biological realities of male and female existence. These biological differences were essential to marriage, and those committed to minimizing the differences between men and women would naturally come to resent the institution’s gendered character. 

The push to redefine marriage to include same-sex couples in America began — if such a profound movement can be said to have a formal beginning — sometime around 1970, when Jack Baker and Michael McConnell presented themselves before the Minneapolis government to apply for a marriage license. The denial of their application led the couple to pursue a protracted court battle, first appealing to the Hennepin County district court, then the Minnesota supreme court, and, finally, the United States Supreme Court, which answered the couple’s appeal with a one-sentence rejoinder:

“Questions raised by this appeal are moot.”

Perhaps the court thought so. But those questions were not “moot” to many gay couples who sought to participate in an institution from which they felt unjustly excluded. Neither were they “moot” to many feminist scholars, who saw in the cause of “marriage equality” a backdoor means of disrupting an institution that they had increasingly come to despise.

As the gay-marriage debate roiled in the decades before the Supreme Court decided Obergefell v. Hodges in 2015, some feminists began making the case that recognizing gay marriage would, in time, upend the institution of marriage itself.

In 1991, law professor Nan D. Hunter wrote in the journal Law & Sexuality that redefining marriage to include same-sex couples would “destabilize the cultural meaning of marriage” by disturbing the social and political hierarchies that had attended  the institution for millennia. Janet Halley, of Harvard Law, agreed and took the argument a step further in the succeeding decade. Halley argued that the entire sociopolitical edifice erected in defense of married people’s interests — a marital-industrial complex of sorts that frustrated feminist projects at the ballot box — could be effectively dissolved if marriage were redefined. She speculated that recognizing “same-sex marriage might lend momentum to the long-running erosion of the specialness of marriage” and could portend marriage becoming “less, not more, meaningful” in the cultural imagination. “Pro-marriage voting strength could erode,” she thought, and “the social consensus that it is worthwhile to devote public and private resources to ‘support marriage’” could dissolve. Most important, Halley felt that recognizing same-sex marriage might contribute “to the end of marriage’s centrality as a mode of social ordering.”

As the marriage debate reached a fever pitch in the years immediately before Obergefell, this argument continued to trickle through feminist legal circles. In 2012, Jessica Feinberg published a tract in the Northwestern Journal of Law and Social Policy called “Exposing the Traditional Marriage Agenda,” in which she implored “feminist and queer communities” who “disfavor marriage as a legal category” to consider how favoring “marriage equality” might help them achieve the ultimate deconstruction of the institution they loathed. Citing another scholar, Feinberg noted how “advances in marriage equality work to dismantle the characteristics of traditional marriage,” and how, by challenging traditional notions of “permanence, gender roles, monogamy, and procreation,” gay-marriage advocates could facilitate a move “toward the explicit societal rejection of many of the objectionable traditional marriage requirements.”

Three years later — and five years ago in June — Associate Justice Anthony Kennedy discovered in the 14th Amendment a constitutional right to same-sex marriage, legally abolishing the requisite sexual complementarity that had defined the institution for millennia.

In a democracy, society shapes the law, but is also shaped by it in turn. 

Obergefell — whatever one thinks of the decision — necessarily undermined the gendered assumptions that were central to the traditional definition of marriage. The differences between men and women — differences that exist in defiance of every attempt to stamp them out, differences present in ancient Mesopotamia, differences that live on in the depravity of modern “incel” culture and the supposed “paradox of declining female happiness” — were discarded in a moment. The collective wisdom of civilizations was ignored, and men and women were rendered as interchangeable beings, their capacity for generative love a matter of trivia to be cast aside in a cosmic quest for Equality. The one-flesh union of husband and wife that held such purchase in the minds of civilizations immemorial was, as Halley predicted, “deprived of its power.” So, too, was the vision of sexual difference and complementarity that such unions presupposed.

Perhaps that vision was outdated. Perhaps thinking that male–female differences are essential and immutable is the sort of thing rightly reserved for bigots and retrogrades, an artifact of Sumerian intolerance. Perhaps we are better off telling ourselves that men and women are essentially the same, with no meaningful differences between them whatsoever, that anyone who would insist on sexual complementarity’s central role in the marital bond is contemptible, or worse. Perhaps allowing people to change their birth certificates to reflect their gender identity is a civil-rights breakthrough akin to the abolition of Jim Crow laws. Perhaps the transgender children whose bodies are mutilated by licensed physicians are not victims of our androgynous society, but its foremost beneficiaries. 

Perhaps this is all true, but someone ought to explain it slowly, so the rest of us can understand. 

This article appears as “Obergefell at Five” in the August 24, 2020, print edition of National Review.

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