So here’s an intelligent affirmation of Kennedy’s argument in Obergefell from an “American conservative.” The key precedent is Loving. There the Court established the right to marriage as a love match (Loving is about loving!). That right can’t be found in the Constitution, and so it must be understood to be the Declaration’s “pursuit of happiness.” This should give pause to all those favoring a jurisprudence of natural rights that allows justices to constitutionalize the Declaration as a vehicle for judicial review.
I actually agree that the right to marry for love is pretty traditionally American.
Tocqueville talks about the American woman’s right to marry the man she loves (and no one else). That right is the foundation of American sexual fidelity in marriage. Linking together love and marriage abolishes what was, in effect, the aristocratic man’s right to follow the call of nature through extramarital love affairs in opposition to the conventional/political foundation of his arranged marriage. Sexual exclusivity in marriage honors the loving consent — and the equality of the loving persons freely surrendering their freedom — at the foundation of a republican or a Christian marriage (and the American marriages Tocqueville described are supported by both all American religion and the secular law).
The right to a loving marriage also supports the chastity of woman. An American man who proclaims his love to a woman to move events along in an intimate setting receives the message from the sensible and virtuous American woman that the good news is you’re free to prove your love me by marrying me.
Now the Supreme Court hasn’t said anything about those inducements to the sexual virtues of chastity and fidelity that accompany the right to marry the one you love. It hasn’t talked about any of the responsibilities under the law or intrusively binding social convention that accompany that right.
I can’t help but remember what Nietzsche says about the liberal, democratic project of making marriage all about (ephemeral) love, and about nothing more solid, being inevitably fatal to the institution’s endurance. It’s also democratic to extend that understanding of marriage to the right to marry anyone — of one’s own or of the opposite sex — that one loves. And so there’s no use in denying that those who talk about “marriage equality” and “love wins” are deploying the democratic language of our political tradition.
For Tocqueville (for example), however, the right to marry for love doesn’t mean that the civil institution of marriage exists primarily to encourage or affirm or give dignity to that love between spouses. A stable, loving marriage is primarily for the benefit of the children. I’m not saying that it’s not possible to integrate SSM into a coherent narrative of the relationship between the privileges and responsibilities of marriage as a civil institution. I wish there were more people about the business of trying to do that. It’s often noted — as the Court does — that we have gone a long distance down the road of detaching parenthood from marriage, and that gay parents often raise children. And we can add that we have detached the institution in some large measure from the requirement of lifelong commitment and absolute fidelity. But that means that we have to work to find the foundation of civil marriage that’s more than just affirming love these days.
There are some, such as Rand Paul, who are saying that the best way to achieve equality in liberty is to abolish the civil distinction between marriage and other relational contracts between two individuals. And Justice Thomas said that our liberties under the Constitution are all “negative,” and so have nothing to do with the right to the government’s conferral of dignity to a loving relationship.
Having said all that, this author nails what makes Kennedy’s loving, pro-marriage opinion attractive to some relational (if not most) conservatives and to most relational liberals — and unattractive to libertarian individualists.