Up from Marriage: Freedom, Solitude, and Individual Autonomy in the Shadow of Marriage Equality

Abstract

While Obergefell v. Hodges represents a tremendous victory, Justice Kennedy’s adulation for the dignity of marriage risks undermining the dignity of the individual, whether in marriage or not. Of course, the U.S. approach to constitutional rights is primarily based on individual (as opposed to collective) rights, even while certain rights have associational dimensions (such as the freedom to associate). Throughout the opinion, Kennedy elides the individual and the married couple. As feminists going back at least as far as Elizabeth Cady Stanton have recognized, self-sovereignty, individual autonomy, and independence have been particularly important for women’s empowerment. Yet, feminism also benefits from drawing on relational autonomy theory, which recognizes that individual autonomy is shaped through a wide variety of relationships. Kennedy’s opinion can be strengthened if we flip it and view it from a relational autonomy perspective, to better analyze the import of marriage as a vehicle for mediating our relationships with each other and the state. Indeed, marriage itself is akin to a form of governance that could be disaggregated to better understand (1) how individual autonomy, choice, and equality (between individual partners) can be enhanced, and (2) how we might think more expansively about an affirmative role for government in supporting individual autonomy within and beyond the traditional married, nuclear family.