My conclusion in what follows is that, notwithstanding much rhetoric in the opinion, states have some room to rethink marriage in light of marriage equality. And with some intellectual jujitsu, this opening to rethink the state’s place in relational ordering gives marriage-skeptics another bite at the apple to get something they wanted all along: to decenter the largely religious, gendered, and bourgeois institution of marriage. Justice Kennedy’s opinion has the unfortunate result of reaffirming marriage at the top of a relational hierarchy, yet there are surely other ways we can have civil rights and equality for gay people without marriage at all. A little bit of resistance by several states might allow for movement toward an even more progressive vision of a life in love. That vision either proliferates the menu of options available to people—gay or straight—or makes a meaningful effort to secularize the primary modality of recognizing and legitimating the private choices people make about ordering their romantic and sexual lives. Ultimately, this kind of disestablishment is not some newfangled idea: the state actually was quite a latecomer into the marriage business and it is only contingently in its current role.
Ethan J. Leib,
Hail Marriage and Farewell,
84 Fordham L. Rev. 41
Available at: https://ir.lawnet.fordham.edu/flr/vol84/iss1/5