Obergefell v. Hodges and Nonmarriage Inequality
104 Calif. L. Rev. 1207 (2016)
52 Pages Posted: 23 Nov 2016
Date Written: November 21, 2016
On June 26, 2015, the Supreme Court announced its much-anticipated decision in Obergefell v. Hodges, opening the door to nationwide recognition of marriage rights for same-sex couples. The public response to the Court’s decision was immediate and overwhelmingly positive. There is certainly much to celebrate about the Obergefell decision, but there is also cause for serious concern — even alarm. Although the Obergefell decision is a victory for same-sex couples that wish to marry, it is likely to have negative repercussions for those — gay or straight — who, by choice or by circumstance, live their lives outside of marriage.
Obergefell builds the case for equal access to marriage on the premise that marriage is the most profound, dignified, and fundamental institution that individuals may enter. By comparison, alternatives to marriage, which I collectively term “nonmarriage,” are less profound, less dignified, and less valuable. On this account, the rationale for marriage equality rests — perhaps ironically — on the fundamental inequality of other relationships and kinship forms.
Keywords: marriage, marriage equality, nonmarriage, civil rights, parentage, family law
JEL Classification: K36, K19
Suggested Citation: Suggested Citation