Refuting Justice Kennedy’s Majority Opinion




In this piece we will be examining  what I believe to be the most significant points of the recent Supreme Court majority opinion on marriage penned by Justice Kennedy, and refuting them.  But because this  opinion was in actuality, more legal homily than legal analysis, we will begin with a brief treatment of the central question of this debate before we confront the substance of the opinion itself.

The central question of this entire discussion is this: For what reason would an individual state, under our system of government,  not possess the right to establish  an institution exclusively for the purpose of promoting the responsible procreation and rearing of children?

The purpose in question by all accounts passes the test of representing  a legitimate public interest,  and in granting the particular legal rights and privileges that it does to male/female couplings, it pursues that public interest by rational means.   We are putting  the DOMA laws aside, which came later historically, and which were dealt with  in a previous article. Here we will  simply  deal with the original marriage statutes that provided only for male/female couplings.  Now if we have a legitimate purpose and a legitimate means of pursuing that purpose do we not have a legitimate law?  the Federal government does not possess the right  to compel a state to expand a legitimate law in a manner that is not pursuant to  the original purpose of that law, even if it alleges that this expansion would not interfere with  that purpose. Furthermore, one cannot accuse an institution of discrimination merely because one would prefer that another kind of institution ( one with  a different purpose)  exist in its place.  One can only charge an institution with discrimination on the basis of its existing legitimate function.

For this reason there has only ever been one significant argument in the entire marriage debate; the argument known  as the non-procreation argument.  It contends that promoting the responsible procreation and rearing of children cannot be the true purpose of these state institutions given that they allow for marriages involving the sterile and the infertile. I repeat again for emphasis, that this is the only  significant argument against the right of the states to establish  an institution for the purpose of promoting the responsible procreation and rearing of children. It is however a  quite  vulnerable argument, and this is a vulnerability that unfortunately was not pointed out during the trial. The best form of the argument was given during the recent trial by Justices Kagan and Ginsberg  who stated that  to say that marriage is about procreation is to technically open the door to a state law banning marriages involving the infertile, or even dissolving marriages of that description which already exist.  They conclude that because we understand intuitively that this is not right, the  purpose given for the institution cannot be correct.

But this very same peculiar logic dictates that if marriage is actually about sexuality instead of procreation then technically  a state could create a law  declaring that if it discovers  evidence of medical impotence it reserves the right to prevent or dissolve a particular marriage.  Now we know that  both the Justices and the nation as a whole would oppose  such a law in principle. Putting all practical considerations aside, would Justice Ginsberg be willing to look an irreversibly impotent man in the face and tell him that he has no inherent legal right to marry and that the only reason he was able to marry and remain married is because  the state did not identify him?  And if she could not do this, does it mean that marriage is not really about sexuality? That would be news to Justice Kennedy who spoke at length in his written opinion about this issue as a matter of gay rights (or a matter concerning a particular sexual preference).   Also,  if marriage is no longer a specifically sexual union then the  historical justification for laws against close family marriage no longer exists.   No,  the actual reason that neither  procreation nor intercourse is policed is because we live in a free society, and institutions such as marriage are designed to promote not to enforce. Laws excluding  same sex “marriages” then can be no more inconsistent then laws banning close family marriage.

With the real core issue of the debate dealt with, we now move to the particulars of  Justice Kennedy’s opinion.


Justice Kennedy: The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time. The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time. For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman.

But there is a difference between  a change to the incidental aspects of a thing and a change in its essential aspects (or in other words, to its definition) . Marriage is historically an institution for the purpose of promoting the responsible procreation and rearing of children  across a society, and  this has remained a constant  in the midst of the particular  changes to which Kennedy refers. The “political “ religious ” and “financial” concerns are all  pursued within that  particular context. He  also writes as though other traditions of marriage were not known to the Romans and to the various other societies he refers to  implicitly . This is of course not the case. These societies were quite aware of other marriage traditions, and so necessarily recognized  the more general concept of marriage as simply the union of a man and a woman in  whatever society they observed it, although they were  partial to their own traditions.

To deny the difference between the incidental aspects of an institution and its essential aspects is to  render all political and legal conversation incoherent. It would be like claiming for example,  that  a law changing the level of the premium  in  Medicare  (or some other structural aspect of it)  is not significantly different from a law that makes Medicare available  to 25 year olds.  One is an essential change (a change in definition) the other is incidental. Marriage has consistently been an institution for the purpose of  promoting the responsible procreation and rearing of children (and the associated concerns).  Kennedy’s implied argument for essential change is inaccurate.

Justice Kennedy2) Applying these established tenets, the Court has long held the right to marry is protected by the Constitution. In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.”

Interracial marriage is not a useful  analogy.   It’s a rather easy task  to  refute the claim that sex has played no more of a role in the definition of marriage than race has.  For starters, look at  English lexicography. While there are  countless English dictionaries and lexicons throughout the centuries that mention sex in their definitions of marriage,  I know not  of a single example that mentions race no matter how far back we go.  Interracial marriage  in Colonial America predated the creation of laws prohibiting it.  According to early 18th century French census records over 50% of the marriages conducted in its territories were interracial (1) . In the same state of Virginia in which marriages between Whites and Native Americans would ultimately be outlawed,  there was the  famed marriage between John Rolfe and Pocahontas. It was not only accepted by the American colonists,  but the couple returned to England itself and was welcomed within English high society with great fanfare. There was no sense that the act in  anyway violated the “definition of marriage”.  The earliest laws focusing on interracial marriage actually recognized those marriages, but simply penalized them. In the very penal codes themselves the man and woman of different races are referred to as “husband” and “wife” (2).

Nine states never  had any laws against interracial marriage,  undermining the notion that race was part of any sort of unanimous social definition of the concept of marriage.  There is a difference between something that is merely undesirable to a particular group of people and something  that is  inconsistent with the definition of a particular thing. Marriage has historically been about family creation  which is why sex  has figured prominently into it. Race has no organic relationship to the purpose of marriage.

Finally in the 1967 case Loving V Virginia  cited by Kennedy to support his arguments, the language in the opinion itself  implicitly invokes the reproductive purpose of marriage. The question that was recently before the court was, should a state, if it so  desires, have the right to uphold this age old definition of marriage. Other states would of course have the right to act as they wished. The question  is not “who should be allowed to marry?” but “what is marriage?” and “who should decide the question?   Discrimination can only be defined in relation to the intended purpose of an institution.  One cannot argue that an institution is discriminatory because one would prefer that another type of institution (one with a different purpose) take its place.  And for the government to overthrow  a state institution on that basis is an act of unacceptable violence against the liberty of the states

Justice KennedyExcluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.“

There are two distinct issues in this quote. The first is the issue of access to a collection of tangible benefits  and the second is the right to the word  “marriage”.  In the early days of the marriage debate one rarely heard much talk  about children from opponents of traditional  marriage, the conversation revolved entirely around the “happiness” of adults. As those that dissented with the movement began to criticize it, arguing that it made marriage into an institution that revolves around adults rather than one that revolves around children, the movement regrouped and began to add a discussion of children to its rhetoric.  Now a single person has always been able to   choose to care for a child by means of adoption, regardless of what his sexual preferences happen to be.  We did not have a policy that prevented gays from adopting, what we had was a policy that did not recognize any form of joint custody of children aside from husband and wife.  Now If someone argued that this policy should be altered because having two guardians rather than one  is in the interests of children (even if they are not husband and wife) that is fine,  but it would not specifically be about one group.  It would have to be  a law that allowed for  all types of  joint custody.  Two aunts for example left with the care of a minor relative could benefit from the privileges that such a policy might lead to, as would others.  Inasmuch as the interests of any child would be furthered by transposing certain benefits now associated with marriage onto adoption policy, it could  be done.  Therefore this particular concern of Kennedy’s  is an adoption/ childcare concern and not a marriage concern.


Next we have the issue of the “dignity” of the institution.  Kennedy argues that not labeling same gender sexual relationships as “marriage” will be harmful to any children that may live with the two parties.  The argument concerning dignity has always seemed to me to be a circular one that assumed precisely what it claimed to prove.   It is only if we assume from the outset that the label “marriage” is appropriately applied in such instances that anything is being [inappropriately] denied.  In the scenario of the two aunts, or in any other non-marital scenario  in which children are overseen by various guardians, obviously no one assumes that the children are harmed by the absence of that same label because we  do not see the label  as describing those specific relationships.  It is only by assuming that marriage is properly defined as “A” rather than “B”  from the outset that we are able to reach Justice Kennedy’s conclusion.

Finally, the great distortion in this discussion has been the notion that the nation has “organically evolved” to be where it is now.  There was never anything organic about it.  This entire movement would have been inconceivable in the absence of  the national legal campaign that has defined it from the very beginning.  Inconceivable in the absence of its invalid claim of legal discrimination,  and the all important analogy between itself and the American Black Civil Rights movement which was based upon  that very claim.  This was not an evolution, it was a campaign.  But I must conclude this piece with a  warning about an issue that is even deeper than all of this. a warning against this dangerous notion of inevitable historical progress; against the idea that there is some transcendent force called “history” that guides us, whether we like it or not, in the direction of greater prosperity and soundness.  There is no such force.   As members of a free society there is no more important principle  for us to understand than the fact that we are the determiners of our own destiny,  and at all times we are just as capable of   decline or collapse as we are of progress.. It all rests on the wisdom of our decisions.


 1. Susan Sleeper-Smith, Indian Women and French Men. (Amherst: University of Massachusetts Press, 2001), 46

2. (1664 marriage ordinance of Maryland)  William H. Browne, ed., Archives of Maryland (Baltimore: Maryland Historical Society, 1883), pp. 533–34


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