The Right to Marry

The Supreme Court has said that there is a constitutional “right to marry”; but what can this possibly mean? People do not have a right to marry their dog, their aunt, June 29, a rose petal, their neighbors, or a sunny day. This essay attempts to make some progress in understanding both the content and the scope of the right to marry. With respect to content, it concludes that people have no more and no less than this: a right of access to whatever expressive and material benefits the state now provides for the institution of marriage. It follows that the right to marry falls within the “fundamental” rights branch of equal protection doctrine, and is not properly understood in terms of substantive due process; it also follows that the state could abolish the official institution of marriage tomorrow. With respect to scope, the essay identifies a minimal understanding, to the effect that the right to marry is enjoyed by any couple consisting of one adult man and one adult woman. The minimal understanding can claim a plausible defense in a tradition-based understanding of fundamental rights; and on institutional grounds, a tradition-based understanding has a great deal of appeal. Its problem is that it has a degree of arbitrariness. This is a formidable problem, but for reasons of prudence, federal courts should not adopt a broader understanding that would, for * Karl N. Llewellyn Distinguished Service of Jurisprudence, Law School and Department of Political Science, University of Chicago. This is a substantially revised text of the Uri & Caroline Bauer Memorial Lecture, delivered at Cardozo Law School on September 8, 2004; readers are asked to make allowances for a text originally intended for oral delivery. I am most grateful to the students and faculty of law school community for their kindness and multiple suggestions during my visit. Thanks too to Martha Nussbaum and participants in a law and philosophy seminar in 2003-2004 that explored aspects of this topic; to Elizabeth Emens and Carolyn Frantz for helpful comments; and to Rob Park for excellent research assistance. example, require same-sex marriages to be recognized. The essay concludes with some remarks on the possible abolition of the official institution of marriage. It explains that there are plausible grounds for objecting to that institution and that there is a real question whether the current system would be chosen if a society were starting from scratch. It emphasizes that marriage is emphatically an government-run licensing system, embodying a set of governmental mandates and conditions. An understanding of this point should inform constitutional discussion, which ought not to proceed by identifying religious and official marriage, or by pretending that the official institution is in some sense natural and foreordained. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. . . . Marriage is one of the basic civil rights of man, fundamental to our very existence and survival. Loving v. Virginia Modern marriage has lost its meaning—consequently one abolishes it. Friedrich Nietzsche Why should the state privilege some adult dyads but not others? Why should the state privilege only dyads? Why not triads? In other words, what business does the state have in deciding which adult personal relationships are deserving of legal protection and benefits and which are not? Patricia Cain 1 381 US 479 (1965). 2 Frederich Nietzsche, Twilight of the Idols, in The Portable Nietzsche 544 (Walter Kaufmann trans. & ed., 1954) 3 Patricia A. Cain, Imagine There's No Marriage, 16 Quinnipiac L. Rev. 27 (1996)