Same-Sex Marriage

Same-sex marriage is the recognition in law of marriage between two persons of the same sex. The conservative position is grounded in the conjugal view of marriage: that marriage is by nature the union of a man and a woman, distinguished from other bonds by its orientation toward the begetting and raising of children. On this account the question at issue is not whom the state should permit to marry but what marriage is.

Conservatives advanced this argument most prominently against the legal recognition of same-sex unions in the United States and other Western democracies during the early twenty-first century. After a series of state-level disputes, the United States Supreme Court settled the constitutional question for the United States in 2015. The conservative critique of that outcome combines a substantive disagreement about the nature of marriage with an objection to the manner in which the change was imposed.

Key Takeaways

• The conservative position rests on the conjugal conception of marriage as the union of a man and a woman, oriented to procreation and the rearing of children, which it distinguishes from a revisionist conception of marriage as a committed emotional partnership.
• In Obergefell v. Hodges (2015) the United States Supreme Court held that the Fourteenth Amendment requires every state to license and recognise same-sex marriages; the principal conservative objection is procedural as well as substantive.
• Conservatives raise three distinct concerns: the definition of marriage, the propriety of courts rather than legislatures deciding the question, and the protection of religious dissenters once the new definition is settled in law.

History And Context

For most of recorded Western history marriage was understood, in law and custom, as a union of one man and one woman, though its other features varied across societies. Campaigns for the legal recognition of same-sex unions gained momentum in Western democracies from the 1990s. The Netherlands became the first country to open civil marriage to same-sex couples in 2001, and other jurisdictions followed by legislation or judicial decision.

In the United States the question moved through the states before reaching the federal courts. The Defense of Marriage Act (1996) defined marriage federally as the union of a man and a woman; the Supreme Court struck down its federal-recognition provision in United States v. Windsor (2013). Two years later, in Obergefell v. Hodges, 576 U.S. 644 (2015), a 5–4 majority held that the Due Process and Equal Protection Clauses of the Fourteenth Amendment require states to license and recognise same-sex marriages. Writing for the Court, Justice Anthony Kennedy concluded that same-sex couples “ask for equal dignity in the eyes of the law,” and that “the Constitution grants them that right.”¹

The Conservative Position

The fullest contemporary statement of the conservative position is the conjugal account set out by Sherif Girgis, Robert P. George, and Ryan T. Anderson in What Is Marriage? Man and Woman: A Defense (2012), which developed an argument first published in the Harvard Journal of Law and Public Policy in 2010.² On their account marriage is a comprehensive union — of minds and of bodies — that is completed and extended by the bearing and rearing of children, and that for this reason takes the form of a permanent and exclusive bond between a man and a woman. They contrast this with what they call the revisionist view, on which marriage is an intense emotional and domestic partnership; the revisionist view, they argue, cannot explain why the state should single marriage out for recognition at all, or why it should be permanent, exclusive, or limited to two persons. This reasoning draws on the older natural-law tradition that treats the structure of marriage as given rather than constructed.

Beyond the definition, conservatives press a constitutional objection: that Obergefell removed a contested moral question from democratic deliberation and resolved it by judicial decree, a charge Chief Justice John Roberts pressed in dissent.³ A third concern is for religious liberty. Conservatives argue that once the revisionist definition is enacted, institutions and individuals who hold the conjugal view — religious schools, charities, and professionals in the wedding trade — face pressure to conform or withdraw from public life, and they treat the protection of such dissenters as a test of whether the new settlement can accommodate disagreement. The conservative case is framed as a defence of the family as the prior institution that the state recognises rather than defines.

Differing Positions

Supporters of same-sex marriage reject the conjugal account as either historically inaccurate or unjustly exclusionary. They argue that marriage in practice has long served companionship and mutual support independently of procreation — childless and elderly couples marry without objection — and that the procreative criterion is therefore not essential to the institution as the law treats it. On this view the exclusion of same-sex couples denied them equal standing and the tangible benefits of marriage without a sufficient public justification, which is the reasoning the Obergefell majority adopted.

On the question of judicial versus legislative resolution, supporters reply that the protection of fundamental rights from majority votes is a proper function of constitutional courts, and that the equal-protection claim was the kind of question courts exist to decide. On religious liberty, many supporters accept that conscientious objection by clergy and houses of worship should be protected, while disagreeing about how far exemptions should extend to commercial and public services.

References

1. Obergefell v. Hodges, 576 U.S. 644 (2015), Opinion of the Court (Kennedy, J.), slip op. at 28; United States v. Windsor, 570 U.S. 744 (2013).
2. Girgis, Sherif, Ryan T. Anderson, and Robert P. George. What Is Marriage? Man and Woman: A Defense. New York: Encounter Books, 2012.
3. Obergefell v. Hodges, 576 U.S. 644 (2015), Roberts, C. J., dissenting, slip op. at 2-3.