Marriage Equality Without Marriage Hyperbole?

This semester, I am teaching Family Law, and our textbook begins with an extended discussion of the contemporary constitutional norms governing marriage and its regulation in the United States.  As we make our way through the seminal cases of Griswold, Loving, Eisenstadt, Lawrence, and Goodridge, we’ve been looking at how the U.S. Supreme Court (and other courts) conceptualize and write about marriage.  While there are clear differences in different Justices’ descriptions and assumptions about marriage, there is an overwhelming tendency for any given Justice to generalize and conceive of the meaning and important of marriage as universal—and universally important in the most dramatic of ways.  So, we see, for example, in Loving, Justice Warren characterizing marriage as “fundamental to our very existence and survival” (NB:  who is the “our” here?).  And in Griswold, we see Justice Douglas characterizing marriage as a “coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”  Drama much?

As regular readers of this blog know, I’m no fan of mainstream discussions of same-sex ‘marriage equality.’  But putting that set of positions aside for the moment, I wonder:  Can the Supreme Court write an opinion affirming same-sex marriage rights without over-generalizing about marriage or why people avoid, enter and/or leave it?  Asked another way, can the Supreme Court write an opinion about marriage that won’t seem laughable when viewed 20 years from now—or horrifying right now from the position of someone in an unhappy marriage?  Asked yet another way altogether:  If the Supreme Court does affirm a right to same-sex marriage, can it—or should it—do so in something like a one-page opinion that essentially says:  “Marriage, bleh.  But some people still wanna do it.  And the Constitution lets them.”  And can the dissent just leave it at something like “The majority is dumb.  We lost here, even though we are right.“?

Obviously, some people see the marriage cases as a vehicle for other legal issues—for example, the level of scrutiny anti-gay legislation should get.  But even here, do we need yet another long, sappy, and simplistic monologue about how gays are Born That Way and how homophobia is more like misogyny than it is like racism, hence intermediateish-plush scrutiny?  Ultimately then:  Is there a way to ask the Supreme Court this term to 1) use the ‘Me Voice’ (“For me, marriage…”) when discussing marriage, and/or 2) abide by a word limit when discussing supercalifgragilisticexpialidociousmarriage?

Comments

[Orin Kerr]

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And in Griswold, we see Justice Douglas characterizing marriage as a “coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Drama much?
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Justice Douglas had a lot of experience with marriage, as had been married three times by the time of Griswold -- and he would have his third divorce and fourth marriage, to a woman 45 years younger than him, just a year later.