In a 2004 op-ed in The Washington Post, we anticipated that the U.S. Supreme Court would end up granting same-sex couples the right to marry nationwide. We argued that doing so would not destroy the essential principles of marriage but advance a shared value of inclusive civil rights and an ethics of care. Late last month, in Obergefell et al. v. Hodges, a majority of the Supreme Court justices came to the same conclusion.
The move makes good sense. Anthropological investigations over the last century have shown that marriage is an elastic institution: Its meaning and value not only vary greatly across societies but also evolve over time in response to new ethical challenges and social needs. The most consequential variable with regard to the institution of Western marriage has been the division of labor between the sexes. As women gained access to education, employment and civil status, they were no longer regarded as a fundamentally weaker and dependent sex.
This, in turn, undermined traditional assumptions about marriage as a heterosexual institution based in radical difference and inequality between the sexes. In the Obergefell ruling, the majority opinion wisely heeded that cue and displaced sexual difference from its anachronistic place in the legal construal of marriage, focusing instead on a central evolving constitutional matter: the extension of human rights to historically disenfranchised groups. “They [same-sex partners] ask for equal dignity in the eyes of the law,” wrote Justice Anthony Kennedy in his opinion for the majority, invoking the equal protection clause of the 14th Amendment. “The Constitution grants them that right.” Dignity — a principle notably enshrined in the very first article of the postwar, post-Shoah German Constitution — affirms a concept of the individual beyond the reach of social distinction and discrimination. Referring to dignity may be one of the more lasting effects of Obergefell because it distances the legal system from the enforcement of narrowly defined moral opprobrium.
By contrast, Chief Justice John Roberts’ dissent insists that the court must defer to a definition of marriage rooted in sexual difference and characterized by an allegedly “unvarying” profile across all millennia and civilizations — “the Kalahari bushmen and the Han Chinese, the Carthaginians and the Aztecs.” The dissenters, however, define marital union in the image of their selective idea of its core features, ignoring the ethnographic and historical facts of the diversity of marital forms. Certainly only a minority of human civilizations (chiefly Roberts’ own) sanction monogamous heterosexual nuclear couples marrying autonomously for love. An anthropological perspective instead starts not with our own habits but with the total range of marriage forms, looking at the broader social context in which marriage functions and has meaning.
Traditionally, marrying outside the immediate family but within a restricted or preferred community has been the norm, but marriage has also been used to create broader alliances of kinship and to keep the peace or resolve disputes through the exchange of spouses between tribes, states and ethnic or kin groups. Today in the U.S., marriage establishes a social unit of singular and exclusive affective bonds. It connects that social unit to a limited network of kin. All this is accomplished by means of a ceremony — almost magical in its instant effects — that must be endorsed and registered by the state.
Although with modernity kinship becomes a theoretically domestic, private matter and seems to have lost much of its alliance function, it is still also highly political. In conflict zones around the world, cross-group marriages now shrink or disappear under political pressure. Principles of descent, another key function of kinship, are of acute interest to the state. They regulate inheritance, confer legitimacy and function as a tool for the consolidation of wealth among elites. In the European Middle Ages, the church — at the time the most powerful public institution — became highly interested in kinship, restricting the scope of whom one could marry, encouraging celibacy and attracting inheritances (especially those of widows). Today U.S. marriages have become increasingly stratified by class as the gap between the rich and poor widens; people tend to marry within their economic and educational niche, and elites lobby to consolidate wealth through favorable tax inheritance laws.
What men or women do in bed with each other is not, and never has been, particularly relevant to the social processes we have described above. The decision of Obergefell is, to be sure, the victory of a sexual emancipation movement, which, like the feminist movement, may now have achieved the dubious premature pleasure of its dissolution. Sex haunts this decision, but it was not central in the legal text. If there is one constant to human history, it is that sexualities remain plural, polymorphous and resistant to political control.
Seen in the long run, same-sex marriages will now enter into a rapidly changing dynamic of kinship in which sex, love, procreation and child care are no longer linked by a single social logic. Extending marital rights to same-sex couples will not alter the waning social significance and statistical prevalence of marriage. We are still faced with the conundrum of how to order our intimate lives, how to conceptualize and act on our mortality, how to care for one another and specify what the public sphere has to do with it.
The majority decision acknowledges the already advanced break in the links among sex, procreation and marriage. Conservative ideology opposes this trend but, in its wish to re-establish a lost moral order based on exclusions, misses the real issue. Americans may still insist that marriage is about love, but love and sex are subject to and manipulated by market norms justified by a voluntarist, libertarian ideology of free choice. Advertising turns sex into a commodity, and capitalism scrambles to market whatever sells. Young people learn how to imagine love and desire from the market, not from the family.
Same-sex marriages will therefore do little to solve the modern social problems of loneliness, isolation, the instability of the family and the marketing of sex. Homosexual relations and heterosexual relations will increasingly resemble each other in their problems and in their solutions.
In the future, we can expect the social recognition of greater diversity, with the male/female and straight/gay binaries becoming pluralized. But for now, the victory is more limited: a legitimation of homosexual marriage as an alternative form of love and care, deserving of legal protection and social support.