"Against Marriage Essentialism: A Legal Grounding for Obergefell and Same-Sex Marriage"

The title of this post comes from this forthcoming paper by Professor Robin B. Kar, the abstract of which states:

When the Supreme Court found a constitutional right to same-sex marriage in Obergefell v. Hodges, many thought the Court was exercising its political will rather than its legal judgment. Noting the absence of same-sex marriage in early American history and assuming that marriage is a relatively static and timeless social institution (a view I call "marriage essentialism"), many believe that Obergefell cannot be grounded in legal precedent.

In truth, however, marriage was itself evolving in numerous ways in the centuries and decades prior to Obergefell. It was evolving from a hierarchically organized relationship of status, which gave certain religious and communal institutions a great amount of de facto control over patterns of marital relation and sexual and reproductive liberty, to a more autonomously governed private relationship, grounded in respect for personal choice and concern for the emotional well-being of partners in intimate relationships. Whereas the early traditions of marriage in America supported two illiberal and inegalitarian caste systems, relating to sex and race, marriage had already become much more egalitarian, libertarian and diverse in function.

Hence, the real legal question in Obergefell was not whether — given a fixed but ultimately mistaken conception of "traditional marriage" — there was any direct legal precedent for same-sex marriage in the United States. The real question was whether — given the recent developments in domestic marriage in America prior to Obergefell — it violated the equal protection clause to give Americans unequal rights to participate in this new and more libertarian form of marriage, based solely on their sexual orientations and resulting romantic choices. The Supreme Court answered this question in the affirmative, but the false premise of marriage essentialism has prevented many from understanding the correct legal grounding for this case.