In a pair of high-profile cases scheduled for oral argument in March, the Supreme Court of the United States will weigh in on the current political and legal debate about same-sex marriage. As novel as it all seems, the issue of same-sex marriage first came before the high court over four decades ago in the little-known case of Baker v. Nelson (1972). The case began when two male students at the University of Minnesota sued the clerk of the Hennepin County district court for refusing to grant them a marriage license. After a run through the Minnesota court system, the United States Supreme Court dismissed the case for “want of a substantial federal question.”

As the Minnesota Supreme Court acknowledged , the state’s marriage statute didn’t say anything specifically about same-sex unions. Yet the law in question was littered with language (e.g., “husband and wife” and “bride and groom”) that presumed marriage was a union of a man and woman. The same understanding was codified in the dictionaries of the day. In the 1960s, Webster’s Dictionary defined marriage as “the state of being united to a person of the opposite sex as husband and wife.” A 1951 edition of Black’s Law Dictionary went further, defining marriage as “the civil status, condition, or relation of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.”

According to a general cultural understanding in place until quite recently, sexual complementarity was the foundation of civil marriage. For many people today”and especially those of the Millennial generation”this understanding seems quaint, if not bigoted. Why should we care about the sex of the persons wanting to marry? Is marriage not about love and commitment? And can two men or two women not love one another and commit to each other as much as anyone else? The rhetorical force of these questions is strong, and stronger still because we have lost sight of why our culture at one time defined marriage, with little serious controversy, as a union between a man and woman.

Until recent years the Anglo-American common law and the decisions of American courts uniformly defined marriage (as the Minnesota Supreme Court wrote) as “a union of man and woman, uniquely involving procreation and rearing of children within a family.” The structure of our marriage laws developed in light of the reality that sexual relationships between men and women (generally) create children and children (generally) are better off when raised by their biological mom and dad. As Maggie Gallagher is fond of saying , “Sex between men and women makes babies, society needs babies, and babies need a father as well as a mother.” Providing children with stable families and connecting them to their moms and dads is the societal challenge for which marriage is our institutional response.

Against this backdrop, the revisionist view of marriage put forward by the plaintiffs in Baker v. Nelson , as well as activists today, has two principal claims: 1) marriage was never really about procreation and 2) requiring sexual complementarity in marriage is as irrational and bigoted as forbidding interracial marriage. On the latter point, the lawyer representing the plaintiffs in Baker noted that “the state does not put upon heterosexual married couples a condition to prove capacity or declared willingness to procreate.” Since procreation was not essential to marriage, he further claimed, statutes defining marriage as a conjugal union between a man and a woman were of a piece with the anti-miscegenation statute struck down a few years earlier in Loving v. Virginia (1965).

The Minnesota Supreme Court offered two brief points in response. On procreation, the court insisted that the “statute is no more than theoretically imperfect” and that there is no requirement for “perfect symmetry.” On the analogy to racism, the court wrote simply that “in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” Five years after its decision in Loving v. Virginia , the Supreme Court then dismissed Baker for lacking a federal question”something it could do only if Minnesota’s marriage law did not violate the federal Constitution.

When the court revisits the issue in March, defenders of conjugal marriage will face both a more skeptical court and a more skeptical public.

As more advocates of same-sex marriage are willing to admit, the rejection of the traditional definition of marriage will have consequences that travel far beyond the issue of same-sex marriage. Severing the conceptual tie between marriage and procreation will undercut and render unintelligible many of the (already weakened) norms that have traditionally surrounded marriage, such as permanence and sexual exclusivity.

The rhetoric of equality, when taken to its logical conclusion, will render civil marriage itself suspect, since even same-sex marriage (as the philosopher Elizabeth Brake complains in the preface to her book Minimizing Marriage ) “marginalizes the unpartnered and those in nontraditional relationships”quirkyalones, urban tribes, care networks, polyamorists.” The principles behind the “marriage equality” movement require much more than same-sex marriage. After defining marriage as an intense emotional bond between any two adults, the next questions will be, why marriage at all? Why two adults? Why do we care? Indeed, many are already asking these questions.



Justin Dyer teaches political science at the University of Missouri and is the author, most recently, of Slavery, Abortion, and the Politics of Constitutional Meaning . Follow him on Twitter @JustinBDyer .


Articles by Justin Dyer


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