A second principle in the US Supreme Court’s jurisprudence on marriage is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. This point was central to Griswold v. Connecticut, which held that the Constitution protects the right of married couples to use contraception. Suggesting that marriage is a right “older than the Bill of Rights,” Griswold described marriage this way:
“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. The Court has recognized these connections by describing the varied rights as a unified whole. It held that the right to ‘marry, establish a home and bring up children’ is a central part of the liberty protected by the Constitution.
Marriage also confers more profound benefits. By giving recognition and legal structure to their parents’ relationship, marriage allows children
“to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”
Excluding same-sex couples from marriage conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability that marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.
Fourth and finally, jurisprudence and traditions make it clear that marriage is a keystone of our social order.
In Maynard v Hill, (1888), the Court explained that marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress.” Marriage, the Maynard Court said, has long been “‘a great public institution, giving character to our whole civil polity.” This idea has been reiterated even as the institution has evolved in substantial ways over time, superseding rules related to parental consent, gender, and race once thought by many to be essential.
While government is in general free to vary the benefits it confers on all married couples, it has made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules.
There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the government has linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As government itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfilment in its highest meaning.
The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.
New insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged. Notwithstanding the gradual erosion of the doctrine of coverture, invidious sex-based classifications in marriage remained common through the mid-20th century. These classifications denied the equal dignity of men and women. One State’s law, for example, provided in 1971 that
“The husband is the head of the family, and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit.”
Responding to a new awareness, the Supreme Court invoked equal protection principles to invalidate this law which imposed sex-based inequality on marriage.
The present law governing marriage in Anguilla burdens the liberty of same-sex couples. It abridges central precepts of equality. Same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.
These considerations led the Supreme Court in Obergefell v Hodges to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and couples of the same sex may not be deprived of that right and that liberty. The Court therefore held that same-sex couples may exercise the fundamental right to marry.
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than they once were. Marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfilment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. Any new Anguilla Constitution must grant them that right.
