How Obergefell Failed
On June 26, 2015, the Supreme Court handed down its ruling in Obergefell v. Hodges, announcing a constitutional right to same-sex marriage. The opinion, written by Justice Anthony Kennedy, was not so much a legal argument as an ode to the wonders of matrimony. It declared that marriage was not only a “keystone of our social order” but also “essential to our most profound hopes and aspirations.”
This high view of marriage reflected the arguments of a group of writers who had made the case for a once-inconceivable social transformation in avowedly conservative terms. These writers argued that allowing same-sex couples to wed would strengthen marriage and reaffirm its social centrality. They hoped that gay marriage would lead to a revival of marriage more generally.
Now that a decade has passed, it is time to weigh these hopes against subsequent events. The results are not encouraging. Americans are less likely to be married today than they were ten years ago, continuing a preexisting trend. If marriage is a keystone of the social order, our social order is weakening. If it is essential to our most profound hopes, the realization of those hopes has grown less likely. Far from bringing about a revival of marriage, Obergefell has been followed by its steady decline.
No one was more influential in advancing the conservative argument for gay marriage than the journalist Andrew Sullivan. His landmark 1989 essay, “Here Comes the Groom,” laid out the basic terms of an argument that would later be taken up by Kennedy. Sullivan warned that domestic partnership—a frequently proposed alternative to gay marriage—“chips away at the prestige of traditional relationships.” He worried about “the weakened family’s effect upon the poor.” And he praised marriage for its tendency to promote “social cohesion, emotional security, and economic prudence.”
This was, as the subtitle of the essay put it, “a conservative case for gay marriage,” one that Sullivan extended in the coming years. In a 1993 essay, he described marriage as “the highest public recognition of our personal integrity,” anticipating the elevated view of marriage that would be expressed in Obergefell. And in his 1995 book Virtually Normal he suggested that gays and lesbians would embrace marriage with “as much (if not more) commitment as heterosexuals.”
On the evidence of marriage rates, this prediction has not been borne out. In 2021, opposite-sex couples were seven times more likely to be married than cohabiting. Same-sex couples were only 50 percent more likely to be married than cohabiting. Undoubtedly some of these unmarried couples share more genuine commitment than some of the married ones. But ten years after Obergefell, gay couples are much less likely to seek the public recognition of marriage than straight couples are.
Sullivan’s arguments were echoed by Jonathan Rauch, a center-left writer. In his 2005 book, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America, Rauch warned that “preserving the ban on same-sex marriage will in fact weaken marriage, a little at first but then more over time.” And he argued that “legalizing same-sex marriage would indeed strengthen the meaning and mission and message of marriage.”
Given these statements, the subsequent evidence can only seem disappointing. In 2015, 48.3 percent of adult Americans were married, according to the U.S. Census. In 2023, 46.4 percent were (a figure that includes 1.2 million married gay Americans). Underlying this gradual change are some dramatic shifts. In 1980, only 5 percent of middle-aged Americans had never married. In 2030, that number will stand at 25 percent. And those who do marry are marrying later than ever. Whereas 79.6 percent of women and 65.3 percent of men born between 1940 and 1944 were married by age 25, that was true for only 30.3 percent of women and 20.3 percent of men born between 1990 and 1994. If these changes represent a strengthening of marriage, it is hard to see how.
In the years before the Court’s decision, advocates returned time and again to the idea of “marriage equality.” In 2013, a pink equals sign on a red background went viral on Twitter and Facebook, shared by the likes of Martha Stewart and Bud Light. June 26, 2015, the day Obergefell was decided, was supposed to mark the moment at which a closed institution at last became open to all. But even as the legal definition of marriage expanded, the actual practice came to be limited by class divides. In 2018, 42 percent of lower-income adults had never been married, compared to 23 percent of those with higher incomes. In 1970, there had been no difference in marriage rates between those with lower and those with higher incomes. But over time, marriage had become an institution for the richer, not for the poorer.
Obergefell succeeded in establishing a right to gay marriage. But it fell short of the hopes expressed by its most eloquent advocates, and it failed to deliver on its own lofty rhetoric. It announced the “transcendent importance” of an institution with fading popularity. It declared that marriage “always has promised nobility and dignity to all persons, without regard to their station in life”—even as marriage rates suggest that such “nobility and dignity” are luxuries enjoyed by the well-to-do. It determined that marriage rises “from the most basic human needs”—in apparent ignorance of the fact that for a large and increasing proportion of the population, those needs will go unmet.
No doubt some of the warnings issued by opponents of same-sex marriage were overstated. But it is possible now to look back and say the same of the assurances given by proponents. If Obergefell failed to contribute to a revival of marriage, that may reflect the fact that the logic of the opinion—and of the movement that made it possible—had as much to do with an affirmation of individuality as with an insistence on the importance of social institutions. Kennedy wrote that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” This claim—which Kennedy described as the “first premise” of the relevant precedents—helps to explain how Obergefell was celebrated by a society that was increasingly choosing single life and cohabitation over committed relationships. It presented marriage itself as an extension of individual autonomy and so ratified a set of assumptions that diminished the prestige of binding institutions.
When the Supreme Court issued its opinion, the New York Times hailed its “humane grandeur” and remarked on “the dwindling number of Americans who oppose same-sex marriage.” Now the trend has reversed. The number of those who reject same-sex marriage is increasing today, especially among the young. Perhaps that’s because they have come of age in a society that promotes individual autonomy to such a degree that it undermines all forms of permanence, especially marriage. They probably do not regard Obergefell as having caused the decline of marriage. But they may suspect that the redefinition of marriage is part of a larger project that claims to enlarge their freedom while making their lives less noble and dignity more difficult to obtain. That suspicion is well-founded—which means that the growing opposition to same-sex marriage is likely to continue.
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