Obergefell v. Hodges, Identity, and Dignity

By Lambert Strether of Corrente.

Not only can I not even pretend to be a lawyer, venturing into a theoretical discussion of identity politics would, for me, rather like trying to operate high-speed machine tools when I don’t have any training. So I’m not going to do either of those things. Rather, I want to take a layperson’s look at Justice Kennedy’s opinion in Obergefell, which seems to find a right to dignity in the penumbras of the Constitution (rather like the much-abused right to privacy), and tease out some implications of that line of thought. Kennedy’s opinion is thirty-three pages long, and I did fight my way through it, but I found three paragraphs of Kennedy’s “soaring language” (two at the beginning, one at the end) especially striking.

From the introduction to Kennedy’s Obergefell opinion, the first paragraph (page 6, here in PDF):

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.

The second paragraph (page 8):

From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage.  The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life.  Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm.  Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons.   Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.

And from the peroration, the third (page 33). Note the climactic final sentence:

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 once they were.  As some of the petitioners in these cases demonstrate, 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 fulfillment 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.  The Constitution grants them that right.

Before moving on to Obergefell’s  implications, a few observations on these paragraphs.

The first paragraph: Note especially the use of the word “identity.” It’s nowhere defined; there’s no footnote. Is identity to be defined as, say,  Crenshaw does? Note also “within a lawful realm,” as opposed to “under the rule of law.” A lawful realm, of course, might allow persons to practice civil disobedience to claim their right to dignity (as did the Civil Rights movement, in retrospect or, more to the point, ACT-UP). Finally, although tangentially with respect to the emerging theme of this post, corporations are persons, my friend. Do they, too, have identity and dignity?

The second: Centrally, note the introduction of “dignity to all persons.” Tangentially: To an unmarried person, this paragraph may overegg the pudding, although one sees how it provides Kennedy with political cover. Surely the transcendant does not only depend on factors other than “identity,” or on marriage? Surely, to pick random instances, the unmarried Descartes, Leonardo da Vinci, Beethoven, Jonathan Swift, Jane Austen, and Anne and Emily Brontë produced transcendent work? And surely they expressed “our most profound hopes and aspirations” in a way that Macbeth and Lady Macbeth (or Joseph and Magda Goebbels) did not?

And the third: Here we have the full claim at last: “They ask for equal dignity in the eyes of the law.  The Constitution grants them that right.”

Summing up: “Equal dignity in the eyes of the law” is a right  that allows persons, “within a lawful realm, to define and express their identity.”

So what happens when we think through the implications of this right? Especially when people define their own identity?

* * *

Let’s discard Kennedy’s soaring language, and ask ourselves what function marriage has in society today. Clearly, for the 1% upward, marriage is a dynastic affair, a vehicle for passing wealth along a bloodline. (As it turns out, that’s what conservative “family values” has meant in practice. This should not be surprising.) For the rest of us, and for political economy as we know it today, marriage is society’s way of making more workers[1]). So what would happen, under Kennedy’s new doctrine, if people began to “identify” as “working class” — to simplify, wage-workers — and to claim their right to “equal dignity in the eyes of the law” on that basis? How would plaintiffs[2] make that claim, and what would be the implications?

Were our political economy still based on slavery — human sale — such a claim would be easy to make[3]. Historian David Brion Davis describes the features of that economy:

There were strong economic reasons for the broad national reach of American slavery. Though Northerners gradually eliminated slavery in their states, Southern slave-grown cotton was the nation’s leading export. It powered textile-manufacturing revolutions in both New England and Europe, and paid for American imports of everything from steel to capital. In addition, the demand for slave labor in southwestern states like Mississippi, Louisiana and Texas drove up slave prices and land values throughout the South. In the 19th century, slave values more than tripled. By 1860, a young “prime field hand” in New Orleans would sell for the equivalent of an expensive car, say a Mercedes-Benz, today. American slaves represented more capital than any other asset in the nation, with the exception of land. In 1860, the value of Southern slaves was about three times the amount invested in manufacturing or railroads nationwide.


Is it possible for a human being to retain their dignity, having been sold? A dubious claim at best. In The Narrative of the Life of Frederick Douglass, Douglass contrasts slave and “free” labor precisely along the axis of dignity:

I had very strangely supposed, while in slavery, that few of the comforts, and scarcely any of the luxuries, of life were enjoyed at the north, compared with what were enjoyed by the slaveholders of the south. I probably came to this conclusion from the fact that northern people owned no slaves. … I had somehow imbibed the opinion that, in the absence of slaves, there could be no wealth, and very little refinement. And upon coming to the north, I expected to meet with a rough, hard-handed, and uncultivated population, living in the most Spartan-like simplicity, knowing nothing of the ease, luxury, pomp, and grandeur of southern slaveholders. …

In the afternoon of the day when I reached New Bedford, I visited the wharves, to take a view of the shipping. Here I found myself surrounded with the strongest proofs of wealth. Lying at the wharves, and riding in the stream, I saw many ships of the finest model, in the best order, and of the largest size. Upon the right and left, I was walled in by granite warehouses of the widest dimensions, stowed to their utmost capacity with the necessaries and comforts of life. Added to this, almost every body seemed to be at work, but noiselessly so, compared with what I had been accustomed to in Baltimore. There were no loud songs heard from those engaged in loading and unloading ships. I heard no deep oaths or horrid curses on the laborer. I saw no whipping of men; but all seemed to go smoothly on. Every man appeared to understand his work, and went at it with a sober, yet cheerful earnestness, which betokened the deep interest which he felt in what he was doing, as well as a sense of his own dignity as a man. To me this looked exceedingly strange. …

Every thing looked clean, new, and beautiful.

Oh brave new world.. Of course, Douglass could well be over-egging the pudding for his Northern audience; and we know that wealth, in both North and South, was intimately tied to slavery, but nevertheless his description — even his discovery — of the “dignity of labor” is quite striking.

From Douglass, we might think that there’s no issue with dignity in wage work — human rental, as opposed to human sale — and surely (pace Clarence Thomas) given slavery as a baseline that’s a sensible conclusion. Some contemporaries agree. In a commentary on Obergefell by Ilya Somin in the Voloch Conspiracy’s column in the Washington Post arguing against Clarence Thomas’s dissent, which is based on the notion of negative liberty:

The second flaw in Thomas’ position is that marriage recognition by state governments is not purely a matter of conferring positive benefits provided by the state. Marriage is also a contractual relationship between private parties, under which they take on various reciprocal obligations to each other.

[And] the right to freedom of contract was, from early on, understood as an important element of the liberty protected by the Due Process Clause of the Fourteenth Amendment, and its analogues in state constitutions. The framers of the Fourteenth Amendment repeatedly referred to the right to make and enforce contracts as one of the basic rights of citizenship that they sought to protect by enacting the amendment. The right to contract was far from unlimited. One can argue about whether it should be construed broadly enough to include same-sex marriage. But it most certainly was part of the liberty protected by the Due Process Clause.

…. Whatever [Scalia’s] “the nearest hippie” might say, freedom surely includes the right to voluntarily enter into a contract that restricts your future options. The right to enter in an employment contract is a form of liberty, even if it might restrict your choices about how to spend your time at work. Similarly, the right to enter into marriage is a form of liberty as well. In exchange for giving up your right to pursue certain kinds of “intimacy” with other people, you (hopefully) gain a relationship of tremendous value. Although some hippies might disagree, the right to make a binding commitment is a hugely important element of liberty.

But are the cases of marriage contracts and employment contracts comparable? I would argue no. To understand this, let’s take a look at how the “dignity of labor” is operationalized, as described not by Scalia’s “nearest hippie,” but by Arthur J. Miller, a Wobbly:

In the shipyard we workers look after each other. We help one another when needed and cover each other’s backs. We share our knowledge. No one knows everything about pipefitting and ships, but we teach each other, and together we have our bases covered. We tend to have our areas that we are better at and if someone has done something more that another, we will ask for their advice. Kenny [the protagonist in the story] had his nose up the foreman’s ass so far that he had no respect for his co-workers and viewed them as the competition. He was a fool who could not see his true self-interests. To him the union was a means to get where he wanted to be, not a bonding of co-workers.

Working people need to stop identifying with the bosses and realize that their fellow workers are the only ones that they have a common interest with. There is dignity in our work and there is dignity is standing up for our common interests.

(Note that in Kennedy’s formulation, it wouldn’t matter whether, according to some an neoliberal economist’s expert testimony, that Miller is “wrong,” because it is up to Miller to “define” his “identity,” and nobody else.)

More formally, Miller and Kenny are confronted with a classic Prisoner’s Dilemma in the workplace: Miller advocates cooperation, pointing out, correctly, that it’s in both their interests to cooperate; Kenny, however, defects. Critically, the Prisoner’s Dilemma is inherent to wage labor, because of the power imbalance between wage worker and owner; the incentive to betray is ever present; inducing such betrayal is the business model of every union-busting consulting firm, for example.

Somin, in other words, commits the fallacy of composition.  By focusing only on the single contract between one owner and one wage worker, Somin ignores or erases the effects of the contracts between one owner and a class of wage workers; class by definition, since the Prisoner’s Dilemma kicks in when in the case when there is, at a minimum, a set of two workers, one to be induced to betray the other. By contrast, marriage — certainly in Kennedy’s soaring language — is not a prisoner’s dilemma; cooperation is inherent to it.[5]

In conclusion, the wage labor system — human rental — inherently and systemically induces some humans to betray other humans. Can this incentive structure be seen as an affront to the Constitutionally protected right to dignity by those whose “identity” (hat tip, Justice Anthony Kennedy) is “defined by” (ditto) their membership within the working class? I’d argue yes; “an injury to one is an injury to all.” There is no dignity in betrayal, or in participating in a system that encourages it.



[1] I’m deliberately avoiding dimly remembered terminology from the late 70s. See, e.g., Beneria, “Reproduction, production and the sexual division of labour.”

[2] I’m filing away a mental note that unpaid labor in the form of housework could be seen to lack dignity, as well; see note [1].

[3] To my knowledge — readers will correct me — no such claim was made when slavery was still Constitutionally permitted; I’m reverse engineering the claim out of Kennedy’s reasoning.

[4] While continuing to finance it, and purchase the fruits of slave labor.

[5] It would be interesting to think through whether the conservative’s latest bete noire, polygamy, is amenable to the logical treatment I have given wage labor.


Patient readers, this is a bit late, I am afraid. I went down the wrong path looking through the scholarship of slavery, and had to retrace my steps and take a different approach.

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About Lambert Strether

Readers, I have had a correspondent characterize my views as realistic cynical. Let me briefly explain them. I believe in universal programs that provide concrete material benefits, especially to the working class. Medicare for All is the prime example, but tuition-free college and a Post Office Bank also fall under this heading. So do a Jobs Guarantee and a Debt Jubilee. Clearly, neither liberal Democrats nor conservative Republicans can deliver on such programs, because the two are different flavors of neoliberalism (“Because markets”). I don’t much care about the “ism” that delivers the benefits, although whichever one does have to put common humanity first, as opposed to markets. Could be a second FDR saving capitalism, democratic socialism leashing and collaring it, or communism razing it. I don’t much care, as long as the benefits are delivered. To me, the key issue — and this is why Medicare for All is always first with me — is the tens of thousands of excess “deaths from despair,” as described by the Case-Deaton study, and other recent studies. That enormous body count makes Medicare for All, at the very least, a moral and strategic imperative. And that level of suffering and organic damage makes the concerns of identity politics — even the worthy fight to help the refugees Bush, Obama, and Clinton’s wars created — bright shiny objects by comparison. Hence my frustration with the news flow — currently in my view the swirling intersection of two, separate Shock Doctrine campaigns, one by the Administration, and the other by out-of-power liberals and their allies in the State and in the press — a news flow that constantly forces me to focus on matters that I regard as of secondary importance to the excess deaths. What kind of political economy is it that halts or even reverses the increases in life expectancy that civilized societies have achieved? I am also very hopeful that the continuing destruction of both party establishments will open the space for voices supporting programs similar to those I have listed; let’s call such voices “the left.” Volatility creates opportunity, especially if the Democrat establishment, which puts markets first and opposes all such programs, isn’t allowed to get back into the saddle. Eyes on the prize! I love the tactical level, and secretly love even the horse race, since I’ve been blogging about it daily for fourteen years, but everything I write has this perspective at the back of it.


  1. Chris B

    If we cannot own another person can we own ourselves? Is that even possible? If we cannot own ourselves how can we rent ourselves out into wage-slavery? Where is the you that is separate from your body that you can rent it out? Can I remove the rentier from my body? If I can rent myself that means I should be able to completely sell myself, so how does one do that? If I rent myself out to a capitalist what is it he is renting? My body? My mind? Both?

    If I choose to be a slave am I really a slave?

    Oh, sorry, I fell asleep and was dreaming I was a butterfly.

    1. JTFaraday

      “If I rent myself out to a capitalist what is it he is renting? My body? My mind? Both? If I choose to be a slave am I really a slave?”

      John Locke says:

      “Though the earth and all inferior creatures be common to all men, yet every man has a “property” in his own “person.” This nobody has any right to but himself. The “labour” of his body and the “work” of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that Nature hath provided and left it in, he hath mixed his labour with it, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it that excludes the common right of other men. For this “labour” being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others.”

      Jean Jacques says:

      “You’re free if you think you are,” (or so I’ve been told).

  2. huck

    Not only can I not even pretend to be a lawyer, venturing into a theoretical discussion of identity politics would, for me, rather like trying to operate high-speed machine tools when I don’t have any training. So I’m not going to do either of those things. Rather, I want to take a layperson’s look at Justice Kennedy’s opinion in Obergefell, which seems to find a right to dignity in the penumbras of the Constitution (rather like the much-abused right to privacy), and tease out some implications of that line of thought.

    This reminds me, for better or for worse, of the way some comedians defend their work. To paraphrase, “I’m just a comedian pushing ideas, don’t attack me for having bad ones.” It is in stark contrast with the claim of QED at the end – although it too is diluted.

    The claim that scabbing is a form of betrayal is only even potentially valid when a voluntary commitment is made. Anyone who wishes to identify as a public school teacher currently suffers the indignity of having the freedom of association stripped as one is coerced to join a teacher’s union. If there is no agreement not to pursue one’s interests, there is no betrayal in doing so. Betrayal requires dishonesty.

    I do not see how it follows that these differences between marriage contracts and labor contracts strip the person of the right to make the latter.

    The right to enter in an employment contract is a form of liberty, even if it might restrict your choices about how to spend your time at work.

    There is nothing in this statement which says you only have the right to make contracts which will have favorable outcomes for you or your class. It suggests the opposite, it allows you to make contracts which may restrict your future self.

    I take great pride in being an employee who is employed at will and would loose that pride if a new system were to emerge in which a paternalistic government were to negotiate the terms of my employment for me. While I too hope for change in the structure of the labor market, I hope for changes which will further reduce coercion, the centrality of power, and dishonesty. Eliminating the right of the individual to make labor contracts would be a step backward for at least the first two of these goals as the implication is that these negotiations would be done by a powerful entity intended to represent the group. This entity could be corrupted, jeopardizing the third of my hopes.

  3. Sandwichman

    “In conclusion, the wage labor system — human rental — inherently and systemically induces some humans to betray other humans.”

    Yesterday was the 150th anniversary of Marx’s call for abolition of the wages system. Sandwichman has been posting at EconoSpeak for a week and a half on this theme. I’ve come to the realization that “the wages system” is a bit of a euphemistic red herring that throws people off the scent. Wage slavery and the lash of hunger are melodramatic metaphors. Not much better than a euphemism. I propose, instead “the wages-rut system” in recognition of Marx’s observation that the “beauty” of capitalist production is that “it not only constantly reproduces the wage-worker as wage-worker, but produces always, in proportion to the accumulation of capital, a relative surplus population of wage-workers” and thus keeps the relationship between the supply and demand for labor in “the right rut” advantageous to capital.

    Joan Robinson once famously wisecracked, “The misery of being exploited by capitalists is nothing compared to the misery of not being exploited at all.” Sadly, Robinson neglected to clarify that the latter kind of misery was a prerequisite for the former.

  4. Steve H.

    Hmm. Going back in for a second go-round of MacBeth on the 13th, and speaking from his perspective, who are you to say my hopes and aspirations weren’t profound? The devil’s always in the details. (Seriously.)

    Put it this way. I was given a projection of great profit, the tribunal told me I was to have the crown, of which there is no greater dignity. Duncan, in his nepotism, stated he would bestow this right on his eldest son, and since he would not enforce the tribunals ruling within his own land, and brought such indignity to me, enforcement of the ruling had to come from outside the legal system which he controlled.

    Also, you seem to be saying that marraige is all cooperation, with no arm-wringing, and I have to tell you that in my experience that is simply not the case.

    At any rate, we create our own reality, as the man said. What goes around comes around. We can’t rely on good feelings to ensure cooperation, but rather the concern

    that we but teach
    Bloody instructions, which being taught, return
    To plague the inventor.

    Marraiges and contracts are not one-off prisoner’s dilemmas, they are ongoing negotiations in an iterated game with consequences for the future.

    Most important, there are open and explicit expectations, and both may be dissolved when those expectations are not met. Identity is a changable, may be manipulated by juxtaposition to what is not, by exclusion of the other. To keep someone from realizing an identity is where the mastery is; no one at the table tells the sucker who he really is to the rest. The invisible hand is most bloody in the dark.

    1. Lambert Strether Post author

      I said cooperation was “inherent” in marriage; I didn’t say that marriage didn’t have other characteristics as well. But whatever it is, it’s not a prisoner’s dilemma, as we agree. Regardless of Macbeth’s bill of particulars against Duncan, can we not agree that the Macbeth marriage does not have the transcendant qualities to which Kennedy alludes?

      As far as creating our own reality… I cannot forbear from quoting the Old Mole: “Men make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past.” To say we create our own reality verges on delusion, and dangerously, if you’re in the elite; less if you get caught up in the self-blamehelp industry.

      “To keep someone from realizing an identity is where the mastery is.” Indeed! One of the reasons for this post!

      1. Steve H.

        Agreed on all points.

        “We’re an empire now, and when we act, we create our own reality” – Karl Rove

  5. jgordon

    Speaking on the topic of marriage rather than wage slavery, it seriously pisses me off that the State has anything to do with marriage in the first place. In order for that to make any kind of sense, one would have to presume that the elites writing these kinds of laws genuinely know what’s good for everyone else. But in fact evidence suggests that elites, and especially American elites, are pointedly more ignorant and corrupt than the general lot of citizenry. So it stands to reason that having/allowing elites to make laws that are designed to alter behavior to the “correct” way is a serious existential mistake for the society.

    1. Fool

      I don’t know if the “elite” are characteristically more corrupt than the laymen; though I would assume that the latter, if they joined the former’s ranks, would soon succumb to the same weaknesses of character.

      In any case, I don’t think these “social” laws have much to do with “what’s good for everyone else” or with any genuine altruism on the part of the “elites” who write them. Rather, I always thought that the politicized escalation of marriage/reproduction issues was a political tool to get the simple people to vote for you. The Right do this to attract heartland Evangelicals, and the Left does it too, case in point Hilary Clinton (or Cuomo, Feinstein, Emmanuel, etc.); she’ll never serve “the people” (at the expense of elites) regarding issues that truly matter, e.g. inequality or foreign policy, but she knows how to leverage to her advantage the low hanging fruit of black-and-white social issues that appeal to her bicoastal demographic base (marriage/reproductive equality, gun control, etc.). I mean, so what if we’ve “redefined marriage” — and, officially, we have — there’s no reason why that in itself should bother you unless you believe (read: been made to believe) that marriage is a holy construct that is now blasphemed.

      PS: Lambert, about this: “Clearly, for the 1% upward, marriage is a dynastic affair, a vehicle for passing wealth along a bloodline.” Do you even know many rich people to make such a statement (not that it’s particularly wrong per se)? This is characteristic of marriage to begin with — literally. Graeber talks about this in “Debt: The First 5,000 Years”. Sometimes you’re way to hasty to pick up the pitchfork.

      1. hunkerdown

        The elite are more disconnected and disinvested in the lives of laymen, to be sure. And an old-school techie once of my acquaintance said, and with good reason, “Marriage isn’t about love; it’s about furniture.” As far as the authorities that decide

        I believe the current USian culture war is a battle of political economies, with sexuality placed front and center as a sales prop, as Americans do. One side believes sexuality is a personal, private role to play; the other believes sexuality is a personal, private capital good. Both have some kernel of truth buried underneath mounds of falsehood, the conceit of genetic value, and self-interested assertion. It’s the political economies underlying both — competitive neoliberalism resp. competitive neoconservatism — that impress me as the “real” products. As long as Dr Pepper, Faygo and the other designated “also-rans” stay in their place, the sale is made.

      2. Mbuna

        I find Martin Armstrong’s take very intriguing and his logic is solid- http://www.armstrongeconomics.com/archives/33983
        There is much more there but here is a taste-
        …Once the state requires a marriage license, even to get married in the Eyes of God in a church, it ceases to be a religious right and enters the realm of civil rights that require a license. The religious people who are against Gay Marriage are barking up the wrong tree. Why does the government have the right to charge a tax to get married? This comes from the King’s right to sleep with the bride on the night of her wedding called Prima Noctum. There is no account that he ever exercised that right in England, but the ledgers are full of “fees” being paid to relieve the king of that right and this fee, with time, became the marriage contract.

        So if you do not pay the fee today, you have NO RIGHT to be married anywhere including a church or in the Eyes of God unless the government is paid. In this context, this is what a right to marry is all about and you should not confuse this with religion to begin with. This is a right for the government to simply charge a licence fee – not religion.

        1. Ron

          @mbuna: of course why any discussion of religion in this context. I was troubled by much of the language in both the dissent and majority view that constantly dragged religion into this issue when it seems clear that all citizens have equal rights under the law, including access to marriage and divorce, its a slam dunk.

      3. Lambert Strether Post author

        On marriage dynasties, I had in mind the Clintons and Bushes, as well as the Romneys and of course the Kennedys.

        But I don’t see your point. I’m making a statement, not picking up a pitchfork, and I don’t see why the statement is untrue (even if it does contextualize Kennedy’s soaring language). Sure, marriage has been around for 5000 years, but so what? Dynasties pass on wealth with it. Peasants (or working people (or slaves)) don’t, because they don’t have any (unless you consider the vanishing middle class house as wealth).

        1. Fool

          Uhh, the threshold for the 1%, as it were, is a few hundred K annual income. The Clintons, Kennedys, and Bushs are each worth at least 9 figures, putting them in the .01%. They’re also political dynasties! Is it really accurate/intelligent to conflate them with mere doctors?

          The statement isn’t necessarily untrue, it just assumes something to be “clearly” a fact — or a causation instead of correlation — when it’s purely speculative. The “clearly” obnoxiously asserts that the point is incontrovertible. And yet, I know rich people whose marriages functioned as “vehicles for passing wealth along” — a crass description, but okay — and others who married out of love; I know less wealthy people who have married for money and, similarly, who married out of love.

          PS: The pitchfork was metaphorical.

    2. john gleason

      I agree jgordon. Why does the government bestow financial benefits to “married couples”?

      On the other hand, whatever the reason, everyone who wishes to “marry” should be given the same benefits, unless, the reason is solely to beget additional laborers.

      I’ve never thought of my marriage as a “contract”: that’s way too much er, business-like; oriented to efficiency, competitiveness and effectiveness – no dignity in that.

      1. jrs

        Marriage is increasingly becoming an economic necessity, one person can increasingly not even support one person at today’s ever worsening incomes and increasing costs.

      2. JTFaraday

        A long time ago some few critical gay people questioned the pursuit of financial benefits through marriage (like employer provided healthcare) asserting that most such rights should simply inhere in persons by virtue of their being persons (implying a national health plan), but somehow that all got lost in the shuffle.

        Anyway, we don’t live in that kind of country. We live in a nasty kill or be killed shithole. It’s a wonder anyone has any empathy for anyone else at all.

    3. hunkerdown

      In order for that to make any kind of sense, one would have to presume that the elites writing these kinds of laws genuinely know what’s good for everyone else.

      One does. That’s an article of faith in the post-Greco-Roman heritage. 1500 years of Plato‘s hierarchical authoritarianism and Augustine of Hippo‘s talking drunkenly to imaginary friends, all taught to the tune of a hickory stick under 150-odd years of the Prussian indoctrinational model, has eliminated most any facility to think to the contrary in the USA and most of the bourgeois-liberal world. I call out Jeremy Belknap, an 18th-c. salesman for anti-democracy and divine authority, in particular for unhelpfully writing, “Let it stand as a principle that government originates from the people; but let the people be taught … that they are not able to govern themselves.”

      Coercion, self-deception (aka faith), and divine entitlement are the bedrocks of Western society. You’re right; it was a terrible and possibly incurable mistake. Thus, people who plausibly believe that it is not only legitimate but proper for the upper middle class to ask the detached State (or some celebrity; they’re near interchangeable in the me-oliberal mind) to grant (just) them access to the privilege of reenacting Frank Sinatra’s sickly, finger-wagging treacle.

      States are a bit of a paradox. Our war is their health, and vice versa. There are benefits to be had by maintaining the Westphalian system of sovereign authority, but a fulfilled, convivial public seems incompatible with vested, absentee authority, or for that matter, indivisible unions of any sort.

    4. Jeremy Grimm

      Continuing on the topic of marriage — I believe the State has an interest in marriage as an institution related to children. I also believe the State poorly cares for the welfare of children and poorly regulates the institution of marriage for that purpose.

      As a divorced father I can with great confidence assert State laws regulating the rights, privileges and obligations of male parents are extremely unfair and contrary to the best interests of children. In my state, women receive custody of the children in virtually all cases except where they do not want custody or lack legal capacity to act as guardians. The non-custodial parent is responsible for paying child support. The payments are determined by the divorce court based on the income of the non-custodial parent at the time of divorce.

      In many ways this arrangement is fair to no one and fair least of all to the children. A typical arrangement allows a father to see his children — every other weekend — at the whim of the ex-wife. [I was very fortunate to have my children with me every weekend and greatly appreciate this allowance made by my ex-wife.] The amount of money arranged by the court was inadequate given my ex-wife’s lack of interest in working at the job she had when I met and married her. I paid more to be sure my children had their needs cared for only to find out from discussion with an attorney that any such payments would be added to the court mandated support payments should there be any disputes in the future. I asked about lowering the child support payments in the event I was laid off — an increasingly likely possibility. My State saw no problem with unemployment — I would become a dead-beat dad and following arrest, I could join the State’s incarcerated — and pay child support catchup forever if I ever managed to find work after prison.

      Given my own grasp of the meaning of marriage and all its ramifications … I can only wonder whether gays and all who wanted a marriage right have a full understanding of the conundrum they pushed their way into. I have no problem with gays or gay marriage or gay couples with children — but I have many many problems with the institution of marriage as managed by the State. I sincerely hope gays and whomever, who fought so valiantly for their human rights might continue the fight after they discover the great inequities fostered by our States’ control of these human rights — be careful what you wish or fight for.

      Always remember the children. Remember the greeting — “How fare your children?”

      1. Jeremy Grimm

        I forgot — the Federal Tax code makes divorce especially unfair. First it is unfair to father, almost always the non-custody parent. It is also unfair to the mother, indirectly. The way the law works, the father does not get the substantial write-offs associated with head-of-household. Those write-offs go to the ex-wife, typically yielding little benefit to her. The dependent write-offs depend on the ex-wife allowing the ex-husband to take them based on a special form the ex-wife must sign. So … the Federal government takes advantage of any hard feelings between the ex-wife and the ex-husband and take full advantage of the income disparity between males and females. The husband — receives responsibility for child support BUT gets no write-off for head-of-household and receives only such write-offs for dependents as allowed by the ex-wife. The IRS rulings assure that the lesser of the two incomes receives such write-offs as accrue. To make things more fair and to get the dependent write-offs to begin with, I split them with my ex-wife, and we both lost the full benefit of head-of-household write-offs [I believe my ex-wife took them, … but as the law was written … neither of us qualified. She was not the chief support for my children, but I did not have custody of them more than 50% of the time.

        You may lack sympathy for the my problems. Consider the problems for truly complex family situations — Grandma cares for the kids in Uncle’s house … neither parent is or could be responsible … and receives money to help support the kids from Uncles, Aunts, and other relatives. Nobody qualifies for write-offs. This complexity was simplified by an IRS ruling in 2004, following requests for clarification.

        So … the tax code was clarified to assure that the least able “families” received the very least support from the tax code. Equity law cries at this outcome, but equity tax issues must involve $10,000 and bring in attorneys. Law and equity are NOT for the poor in America.

    5. Lambert Strether Post author

      People do seem to find talking about marriage far more comfortable than talking about wage slavery, a fine illustration of how the elite works one of its many scams.

  6. LifelongLib

    The state’s involvement with marriage could probably be replaced by some kind of private contract system, but IIRC attempts at this (and civil unions) have run into big problems with interstate/international recognition and enforcability. Whether or not you think either is a good thing, it looks as though it would be as hard to get rid of legal marriage as it is to get rid of (say) capitalism.

  7. sufferinsuccotash

    Maybe Kennedy’s idea of dignity is akin to the “pursuit of happiness”, one of those inalienable rights to which all are equally entitled.

  8. bh2

    The SCOTUS should have ruled no government has authority to define what is “marriage”, but has full authority (by way of its courts) to determine the validity of a contract between consenting adults and their mutual obligations. It needs no more.

    This decision is just another clear example of government absurdly overreaching its narrow and limited competency.

  9. Toivos

    Well Lambert it looks like your interesting essay has led to a series of comments that have just spun off the rails. Not sure why.

    In any case I liked your essay. That link to Arthur J. Miller was certainly interesting. Too bad the wobbly site does not say when their essays were written or the time frame they are describing. Maybe that is an anarchist thing — their truths hold true for all time.

    1. Steve H.

      As one whose comment may be interpreted to have spun off the rails, I shall forgoe indignance and suggest checking for the quality of argument and antitheses bespoke in irony.

      As a specific, Lambert does a twist of the straw when he states “marriage is society’s way of making more workers.” His next sentence then sets the identity in question as workers, the “working class.” But at no time after that does he explicitly address that the ruling concerns gay marraige, and gay marraige specifically deals with a classification of people that does not produce more workers.

    2. JTFaraday

      Maybe it’s because we know in our heart of hearts that we really, really don’t want to be defined as the “working class,” that class that is entitled to nothing but what it manages claws out of the earth with its bare hands– probably after scratching somebody else’s eyes out (as the original post points out).

      The Arendtian bid to rise into the political and claim the right to have rights springs to mind.

      1. Lambert Strether

        Really? I would have thought that a discussion of wage labor would be thoroughly appropriate for a site named “Naked Capitalism.” If you’re referring to your material on Rouseau, please explain.

        1. JTFaraday

          It’s in reference to my comment at 10:51, about (re)defining human beings and citizens (down) into a “working class.”

          Why do I want to do that? I don’t need to take that as a given.

  10. Rhondda

    Seems to me that the right to contract or the pursuit of happiness would have been better, stronger “constitutional vessels” — than some newly identified (heh) rights to dignity and identity. But then I am no lawyer.

    Speaking of lawyer. Reading the opinions of the justices (admittedly, in small doses, any more and I would gak) — makes you wonder if these scotus people are lawyers. What a steaming pile of yaya are these opinions. My visceral reaction was truly WTF.

    Just to be clear, I have no problem gay marriage. I am glad gay couples can get married now. I just think the Law is broken. Handing out made up rights, like identity and dignity and “corporations are people.” The security state’s slow lopping off of constitutional limbs. Secret courts that claim no higher power to review. Etc. It pains me.

    I think we should move to the ancient Bardic system. Pile up some Law Hills. Set up some Law Chairs and maybe a nice Henge. You’d make a good Bard, Lambert. You’d dispense some fine Justice. heh

    1. Lambert Strether

      Well, that was the opinion that Kennedy wrote, and the opinions Kennedy didn’t write don’t matter much, do they? What matters is how to make use of what we have, and what I saw, in Kennedy’s exact wording, was a jurisprudential hole to big enough to drive a truck through.

  11. Lambert Strether

    Indeed. Let’s look at the whole quote, shall we? I’ll present it as you did, but with the essential and omitted qualifications highlighted:

    Let’s ask ourselves what function marriage has in society today. Clearly, for the 1% upward, marriage is a dynastic affair, a vehicle for passing wealth along a bloodline. (As it turns out, that’s what conservative “family values” has meant in practice. This should not be surprising.) For the rest of us, and for political economy as we know it today, marriage is society’s way of making more workers[1]).

    It’s bad not to read the post; it’s far worse to read the post and then distort it.

    * * *

    And then we have this amazing statement:

    gay marraige specifically deals with a classification of people that does not produce more workers.

    Really. Gay people don’t raise kids? I guess I didn’t get the memo.

    1. Steve H.

      Gay people raise kids, and raise them well. But no, they don’t produce them. Not without material assistance.

      1. Steve H.

        Technology may change this, but to date production requires xx and xy cojoined, which does not apply to gay marraige by definition.

        I’ll hedge with this; The closing of Rachel’s Cafe hereabouts highlights the fact that Rachel had two daughters when she was still a man. But as a percentage of work force, the exception is vanishingly small.

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