Document Type

Article

Publication Title

Boston University Law Review Annex

Abstract

Many are eager to celebrate the Obergefell decision as a civil rights—and, indeed, a human rights—victory. Others, like Professor Franke, are reluctant to celebrate Obergefell because celebrating the right to marry lends legitimacy to an institution that is patriarchal, puritanical, a tool for policing intimate conduct, and a tool for the degradation of non-conforming lifestyles. I observe the debate between eager and reluctant celebrants with the strong feeling that both sides are right: We should celebrate loudly and with confidence, but we should take care to do so in ways that further the cause of human freedom and dignity, rather than strengthen patriarchy, puritanism, panoptic policing and bigotry. Professor Franke seems to take somewhat the same position in this post-Obergefell world: She has—wisely, I think—expanded Wedlocked’s project of documenting cautionary tales against marriage to a include a litany of pitfalls to be avoided as the institution becomes more inclusive. This is wise for two reasons. The first is that Obergefell’s recognition of a substantive right to marriage recognition is an important step in the process of understanding how and why our post-slavery Constitution mandates respect for human dignity. The second is that Obergefell ’s inclusion of lesbian and gay people in states’ family law regimes opens possibilities for making those regimes less patriarchal and more constructively child-centered. I justify these assertions in turn below.

First Page

53

Volume

96

Publication Date

2016

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