Concurring
Files
Description
Today, a majority of the Court strikes down laws banning the performance and recognition of same-sex marriages on the ground that such laws constitute caste or class legislation in violation of the Equal Protection Clause of the Fourteenth Amendment. In so doing, the Court reiterates that the right to marry is a fundamental right and denominates sexual orientation a quasi-suspect classification subject to heightened scrutiny. I agree that the Equal Protection Clause compels the legal recognition of same-sex unions. My concern, however, is that although the majority has identified the various ways in which opposite-sex-only marriage laws constitute impermissible class legislation that rests on the inequality of LGBTQ persons, it has not grappled with the way in which the normative and legal priority of marriage compels the second-class status of all other family forms. On this account, I worry that in underscoring that the right to marry is fundamental, the majority’s opinion might be understood, however unwittingly, to endorse the view that life outside of marriage is by comparison less dignified, less profound, and less valuable. Our rationale for marriage equality should not be built on, nor should it fortify, the view that other relationships and kinship forms are unequal or less valuable than marriage. Doing so not only would diminish those who live outside of marriage but would further privilege an institution that, historically, has been deployed to maintain a racial and gender caste system. Accordingly, I write separately to make clear that nothing in the majority’s decision should be read as disparaging or discrediting nonmarriage and nonmarital family forms. Indeed, this Court’s jurisprudence provides strong support for the view that the Constitution protects and credits nonmarriage and the nonmarital family. Further, in writing separately, I also wish to provide some clarity for considering the position of alternative statuses, like civil unions and domestic partnerships, in our reconstituted landscape of relationship recognition.
Source Publication
What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision
Source Editors/Authors
Jack M. Balkin
Publication Date
2020
Recommended Citation
Murray, Melissa, "Concurring" (2020). Faculty Chapters. 1971.
https://gretchen.law.nyu.edu/fac-chapt/1971
