Recovering the Right to Not Marry
Posted: 29 Aug 2015
Date Written: June 27, 2015
In June 2015, the United States Supreme Court announced its much-anticipated decision in Obergefell v. Hodges, the federal challenge to state-level laws that prohibited legal recognition of same-sex marriage. The Court’s opinion struck down opposite-sex only marriage laws as an unconstitutional violation of the right to marry. In doing so, the Court offered a full-throated endorsement of marriage as a social institution of critical importance, and underscored exclusion from marriage as a traumatic legal injury.
Like most cases to consider the nature and scope of the marriage right, the Obergefell opinion is replete with references to Loving v. Virginia, the 1967 case that famously struck down Virginia’s anti-miscegenation law, and in doing so, spoke of a fundamental “freedom to marry.” Though this aspect of the Loving opinion has endured and, indeed, has provided crucial support to the effort to expand civil marriage to include same-sex couples, Loving had more to say. In invalidating the Virginia statute, the Loving Court specifically identified “the freedom to marry, or not marry.”
In Loving’s wake, the jurisprudence has focused on the first part of this statement – the freedom to marry – while wholly ignoring the second – the freedom to not marry. This paper attempts to fill this void by considering the nature and scope of the right to not marry. In particular, it asks whether this right exists, and if so, what are its contours? Most importantly, it considers what reclaiming this right might mean for marriage, as well as efforts to foster a greater degree of sexual freedom and liberty in intimate life outside of that institution.
Keywords: marriage, non-marriage, right to marry, sex, sexuality
JEL Classification: K10, K19, K14, K39
Suggested Citation: Suggested Citation