No two nodes of social meaning have changed more since the end of World War II than marriage and the scope of individual freedom protected by the Constitution. In its ruling that the right to marry must be open to same-sex couples in every state, the Supreme Court, by the slimmest of majorities, turned back efforts to disable the Constitution as a source of liberty in the realm of family life. Few if any acts of state could have conveyed the message of equality for a previously despised group more powerfully than the Court’s guarantee of access to an institution that both expresses moral norms and organizes material support. That is the good news, and it merits celebration.
But beware: There are razors in this apple. Justice Kennedy’s opinion for the Court reached for what he no doubt genuinely believes are the stars, but it wrapped a legal interpretation that is both profound and simple in a miasma of rhetoric about marriage that is both sententious and simplistic. In one of many examples, the opinion’s final paragraph speaks of the plaintiffs’ “hope…not to be condemned to live in loneliness.” Imagine what it felt like for the never-married Kagan, the divorced Sotomayor, and the widowed Ginsburg to join that language. Now imagine how much sharper the edge is for a single-mom waitress or bus driver. And consider how disconnected that platitude is from the vibrancy of a community that has generated new forms of kinship in moments of love and grief, sickness and health.
Lawyers are trained to separate the precise holding of a decision—the nugget that will have binding precedential effect—from its dicta, the peripheral parts of the analysis that are not necessary to the holding. Dicta, we learn, can be as easily ignored as cited by future courts. Lawyers and judges in later cases may reiterate all the twists and turns in the reasoning of a prior Supreme Court opinion, expanding upon and extending them, or they may bypass the inessential aspects entirely.
Justice Kennedy’s views on the “nobility” of a “lifelong union” are dicta, but that may be a formality. We would be arid technocrats to believe that social meanings are constructed only by the precise logic of juridical building blocks. The Constitution provides Americans with a culture as well as a form of governance, and its meanings are constituted and reconstituted by all of our understandings, not just by the enforceable determinations of state actors.
Social conservatives will accuse the majority of recklessly imposing an egalitarian rather than a traditionalist concept of marriage. They are asleep at the switch. The genius and the danger of Justice Kennedy’s opinion is that it swings both ways. Its radicalism lies in its overreach on behalf of a conservative ethos. Whether its ultimate net effect is liberatory or restrictive will depend in large part on whether its bottom line upholding of justice sinks beneath the weight of its clouds of dicta. Not only is it far too soon to know the answer, but in fact, the answer does not yet exist. It is up to us as citizens to create it.
For better and worse, the opinion in Obergefell v. Hodges will rank as one of the most important decisions in the history of the Supreme Court. Let us count the ways.