Let’s Be Clear About Something, Marriage IS Defined Federally
After people realized the full implications of what President Obama said about marriage equality, there seemed to be three main camps of pro-equality reaction:
- face value cheering that the president had supported marriage equality
- people who said a private belief endorsement of the option to marry was meaningless without recognition that marriage is a right; and leaving marriage up to popular vote means you never saw it as a right at all
- people who say that we should simply be happy at any progress at all, and that the state’s rights support is just a political reality we have to accept without criticism or we undermine progressive causes
Of these approaches, I’m really starting to have contempt for the last kind. I actually saw multiple people say that we already leave the definition of marriage up to states already, so this simply isn’t a big deal. Nothing could be more wrong.
We allow states to set criteria for marriage on a superficial level: age, closeness of relationships permitted, waiting periods, etc. And we do this because the states are the ones actually issuing marriage licenses. But what marriage means and defining an individual’s right of access is in unambiguous federal territory.
Not only do we rely on the fair faith and credit clause for all marriages except those of same-sex couples (who are oppressed directly by federal law through DOMA), but when we think about major redefinitions of marriage rights, those come down on a national level. Let’s talk about two key shifts in how we as a country have defined marriage.
For its obvious parallels, I’m going to talk about Loving v. Virginia. The landmark shift in 1967 overruled anti-miscegenation laws as unconstitutional limitations on love and marriage. Loving decriminalized senseless racial segregation that, like same-sex marriage arguments, relied on religious moralistic arguments to support prejudice. This wonderful change could not have happened any other way. A popular majority vote would never have achieved speedy and uniform justice; it wasn’t until 1995 that a majority of Americans polled by Gallup finally approved of interracial marriages. This was a federal redefinition of marriage that changed marriage to qualified mature couples of the opposite sex that loved each other, regardless of ancestry.
Well, say homophobes wanting to look less like bigots, that’s all well and good, but as far as we’re concerned, that didn’t really redefine marriage: look, it’s still one man and one woman. That’s all we want to preserve. We have this bullshit idea that marriages have to in general, be of the structure that produces pregnancy and children in stable households. Sure, some men or women are infertile or don’t want kids, but by and large, marriage is about having and raising babies. That’s cool, right? Nope, not even close.
Next up is Turner v Safley from 1987. This one is important, because it establishes that no, marriages aren’t about households to create children: it deals with the rights of prison inmates to marry. Turner establishes that marriage is a right of liberty under the due process clause; in this case, prisoners marrying in pursuit of happiness is a right that has nothing to do with households, children or even with sex. Prisoners have a right to marry even if they have no option to participate in a private household or raise children. This establishes very, very clearly that marriage is about love, joy and happiness above any other consideration. It pretty much blows the whining of religious bigots about parenting out of the water.
No amount of allowing states to come up with their own “definitions” of marriage would have created this uniform and socially standardized understanding of loving partnership in this country. Only by relying on federal uniformity through legal precedents and guarantees of marriage transferability can we justly allow our understanding of marriage to evolve over time. But I suspect that no matter how marriage changes over time, it will always fit into the description Judge Walker used: marriage is widely regarded as the definitive expression of love and commitment in the United States.