Mormons in a Post-Obergefell World

A few thoughts I’ve had about living in a post-Obergefell world:

The first thing: the decision, on a practical level, doesn’t change anything for most of us. It certainly doesn’t for me. And I don’t say that because I’m straight. I live in Illinois, where same-sex marriage was instituted legislatively over a year ago. The only substantive difference Obergefell makes in Illinois is that couples who marry here don’t stop being married when they move to Indiana. And, as Cynthia pointed out, the vast majority of Mormons are in a similar boat: most of us (in the U.S., anyway) live in places where same-sex marriage was just as legal on June 25 as it was on June 26

Second, marriage will survive. It’s survived bigger changes than this; up until the 19th century, common law jurisdictions appear to have taken quite literally the biblical assertion that a married couple become “one flesh.” Under the legal doctrine of coverture, a married woman basically didn’t have legal rights or obligations apart from her husband. That is, a married woman couldn’t, among other things, hold property, make contracts, or keep her own wages (if she were permitted to work). In some cases, she didn’t even have legal liability for her bad acts, because the law assumed she was acting on behalf of her husband.[fn1]

Coverture slowly disappeared over the course of the 19th century; in the United States, individual states started passing Married Women’s Property Acts as early as 1839, though three states didn’t do so until the end of the century. The United Kingdom passed its Married Women’s Property Act in 1882, giving married women separate legal existence.

I get that, intuitively, allowing two men or two women to marry seems like a bigger change in marriage. But the Married Women’s Property Acts changed the number of legal parties in a marriage from one to two. To me, that feels like a gigantic change, and one that marriage survived.

Moreover, it doesn’t much matter what we think about same-sex marriage; like it or hate it, the Supreme Court has ruled. And ultimately, it doesn’t matter if the Court was right or wrong. As Justice Jackson explained in 1953,[fn2] “We are not final because we are infallible, but we are infallible only because we are final.”

That is to say, we can argue until we’re blue in the face about whether the U.S. should have legal same-sex marriage but, at this point, it doesn’t matter.

Which leads me to my third thought: Obergefell marks both an opportunity and a responsibility for us.

I mean, the church has spent a lot of time focused on its (and our) obligations to strengthen families; one of its principle arguments against same-sex marriage was that it would harm families, which we were under divine stricture to “maintain and strengthen.”

Now we get to put our money where our mouth is. Same-sex marriage is here, and it’s here to stay. If we were to drop our strengthen-the-family rhetoric, if we were to stop working to promote the well-being of families, if we make a hard pivot toward preserving religious liberty, we belie our assertion that our opposition to same-sex marriage was all about the family. (Note that I’m not saying to ignore religious liberty—I believe that’s an important goal, too.)

And the thing is, I don’t think our church leaders were lying. I think they are concerned about family in our culture. And family, frankly, is taking some hits. Marriage is facing serious problems right now—for a lot of reasons, it works really well for the college-educated and affluent, but it works really poorly for the poor and the less-educated. If we don’t have to focus—if we can’t focus—on same-sex marriage, we can transfer some of our energy to help figure out how to make marriage a more viable institution.[fn3]

[fn1] Though that was the law, it may not have been intuitive or uncontroversial to everybody. In Oliver Twist, Mr. Bumble famously objects to the idea that he is responsible for his wife’s acts:

‘It was all Mrs. Bumble. She would do it,’ urged Mr. Bumble; first looking round to ascertain that his partner had left the room.

‘That is no excuse,’ replied Mr. Brownlow. ‘You were present on the occasion of the destruction of these trinkets, and indeed are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction.’

‘If the law supposes that,’ said Mr. Bumble, squeezing his hat emphatically in both hands, ‘the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience—by experience.’

[fn2] (in what, for some reason, is one of the clearest memories I have from my Constitutional Law class)

[fn3] Note that family certainly should not replace God as the object of our worship; while family is an important institution, it is not our sole aspiration. That said, religion isn’t solely here to draw us to the next life—it is also an instrument we can, and should, use to improve this one. So I think family is a legitimate area of focus for the church, just not the principle one.

Comments

  1. N. W. Clerk says:

    Your observation on the finality of Obergefell seems to conflict with your observation that Obergefell didn’t change anything. Isn’t being final a thing?

  2. Jason K. says:

    He isn’t saying that Obergefell didn’t change anything, period, but that it didn’t change the legality of same-sex-marriage in the jurisdictions where most American members of the Church live.

  3. Historical perspective is always useful. I’ve found that the likelihood of an individual arguing against SSM from the perspective of tradition is strongly inversely correlated with their knowledge of historical marriage practices, particularly coverture.

    It is for this reason that the sentence from the Church’s official statement on the matter–“For much of human history, civil laws have generally been compatible with God’s laws”–rings false, to the point of outright intellectual dishonesty. For most of human history, rulers have compelled their subjects to worship in ways contrary to divine commandments as we now understand them, and have permitted practices (slavery, forced marriage, the keeping of concubines and mistresses) that are very much not keeping with God’s laws.

  4. That is to say, we can argue until we’re blue in the face about whether the U.S. should have legal same-sex marriage but, at this point, it doesn’t matter.

    Party-pooper.

  5. If we were to drop our strengthen-the-family rhetoric, if we were to stop working to promote the well-being of families, if we make a hard pivot toward preserving religious liberty, we belie our assertion that our opposition to same-sex marriage was all about the family.

    Yep. I just can’t shake my skepticism about the strong shift to “religious freedom.” It’s a worthy goal, but I’m having a really difficult time seeing just how SSM genuinely challenges the LDS faith’s free exercise of religion.

    A more natural pivot would be to focus on areas that would genuinely strengthen families–poverty, public education, helping single parents, access to medical care, foster care, enforcement of child abuse laws, and on and on. To be fair, the LDS Church has long been an advocate in these areas. The LDS Church’s leadership in these areas is beautiful to me, a manifestation of the hand of God.

  6. Forgot to follow the discussion. Sorry. Following.

  7. “It’s the economy, stupid.” (yes, I know there’s disagreement on the origination of the phrase.) Marriage rates across the world are down in countries where the economy is struggling, and that includes the US. Beyond social propriety, what real incentive do co-habitating adults have to marry? Married filing jointly? Mostly means a few dollars saved on taxes. Insurable interest? Who cares. We’re all carrying our own insurance, anyway. Community property (in some states) that should benefit the SAHM? Who wants to untangle that mess if we decide to divorce. Perhaps the financial incentives to marry aren’t as attractive as they used be. I don’t know that we could pass even more laws favoring “coupling” without all sorts of people who are co-habitating arguing (as did SSM supporters) that they are being unfairly discriminated against.

  8. IDIAT, that’s a valuable point: the current state of the economy has a lot to do with the state of family, and not all of the problems can be fixed by changes in law; some, I believe, can be improved there, but our advocacy for strengthened families cannot, I believe, rest solely in law. If the problem is, for example, a lack of jobs available for non-college graduates (and, from what I’ve read, that’s a (though not the only) problem, perhaps working to improve job prospects and/or education would be a viable method of strengthening families.

  9. “We are not final because we are infallible, but we are infallible only because we are final.”

    No human court is either infallible or final. The SCOTUS itself has reversed itself on more than once.

    “…it doesn’t matter.”

    What doesn’t seem to matter much today is the legal history of coverture, which didn’t apply to Scotland or to queens. Whether it applied in Wales is unclear. It was certainly never universal. Coverture has evolved into consortium, which is still recognized in American law and is the ground on which damages are recovered in a civil action by a non-injured spouse when the other spouse is a victim of personal injury.

    “…at this point, it doesn’t matter.”

    The left rarely says that when they lose an important case.

    So there were never any valid concerns on the losing side that mattered? No point in ever arguing the case then, I guess. Four justices, including the Chief Justice, viewed the decision with alarm. Why on earth would they do that if the believed that it didn’t matter once they knew they were outvoted? Why bother to write four separate vigorous dissents?

    As for “strengthening the family,” I don’t see the Church repealing or de-emphasizing the Proclamation on the Family.

    “…a hard pivot [!] toward preserving religious liberty…” I don’t think the Church ever denied or deemphasized the importance of the free exercise of religion.

    “I don’t think our church leaders were lying.” I should hope not!

  10. Leo, I don’t get what you’re saying. Are you suggesting that Obergefell will be overturned? Because it won’t. Or are you suggesting that this is, in fact, the biggest change that marriage has ever seen? Because it’s not. Or maybe you’re suggesting that we shouldn’t look at what’s negatively affecting marriage, and try to treat the actual problems? Because I really don’t know what to say there.

    Or maybe you’re just arguing for the sake of argument? Because I’m not actually interested in that here; a productive approach toward helping make marriage and family more available for everybody, on the other hand, would be welcome.

  11. Regarding Obergefell, I don’t think the court should be understood to be for (or against) marriage or same sex marriage per se, as a matter of policy or law. Rather, I read Obergefell as a discrimination and states rights case. Is this an instance of discrimination that the Constitution says the states must not do? Or is this an area in which individual states decide? The answer is clear, and having made it there’s no realistic way for the Court to walk it back. That’s why I put it in the “amend the constitution” category.
    But marriage was and is and will continue. On a national and international level the track record and trends were clear, and without Obergefell we would be reaching a critical stage on recognition, with every jurisdiction determining how to respect marriages performed elsewhere.
    Regarding family, I think the social and religious policy discussion should center around children. There I am persuaded that on average, in general (speaking policy, not individual right and wrong), two parents is better (than one or none), relational stability is better, economic stability is better, social approval is better, and parents spending time with their children is better. Policies ought to be directed towards those goods for the benefit of the children, and ultimately for all of us.

  12. Sam,

    I am trying to understand what you are saying and why. Yes, it is unlikely, though not impossible that Obergefell will be overturned any time soon, just as it is unlikely that Roe will be overturned. But controversy over Roe has continued all these years. The Court thought they were settling the issue with Roe, but they didn’t. And eight years of conservative presidential appointments could reshape the court.

    I am concerned that one of the functions of the law is to educate, and on this the Church clearly proclaims a definition of marriage that is different from the definition now forced on the country by the Supreme Court and different from the definition that still prevails in most of the world as measured by population.

    Your post seems to make the Court’s decision final and practically infallible because it is final. That emphasis is a shocking reliance on definitions created by the arm of flesh. Teaching the rising generation that marriage once ha something to do with gender will be harder. The culture is further reshaping gender by celebrating Caitlyn as the best thing ever. That the majority opinion referenced spirituality is a sign that the court is remaking culture rather than just relying on once settled law (e.g. Baker back in the day).

    I also think you are missing the function of marriage to protect women in their asymmetric relations with men. The court’s redefintion of marriage renders it genderless and goes a long way towards rendering all of family law (once the province of the states) genderless. Genderless family law will work toward the benefit of the rich, the powerful, and the well lawyered. The sexual revolution has brought about the feminization of poverty.

  13. “Your post seems to make the Court’s decision final and practically infallible because it is final. ”

    uh, yeah.

  14. Kristine says:

    “The sexual revolution has brought about the feminization of poverty.”

    Have you read the Bible? Or, say, any history book of anywhere?

  15. Kristine,

    More women are living in poverty due to changes in the traditional family structure. The increase in divorce rates and single parenthood are two major contributing factors to change in the family structure. Female-headed families have the poorest economic outcomes, with economic well being dependent on the mother’s marital status and race/ethnicity.

    See The Feminization of Poverty in the United States, 1994

    Have you considered the economic impact of the rise of single motherhood and out of wedlock births, which are increasingly common?

    Have you even met a woman who was divorced post no-fault divorce (whose marriage might have reasonably been saved and reasonably happy in a previous era) and whose subsequent divorce led to a marked decline in her standard of living?

  16. No one knows exactly where family law (now decisively unmoored from democracy, the role of the states, and prior understandings of gender) and the culture (post sexual revolution, but still accelerating in new directions) will now go. One must reckon with unintended consequences as well as “the law of merited impossibility.” The reader is invited to google that phrase.

    Putting the emphasis on children while proclaiming all couples must be considered exactly equal will increase the demand for government to support and subsidize surrogacy so that all families (regardless of gender) can be equal in creating children. That in turn will increasingly lead to the buying of eggs and the renting of wombs, in which there is an already expanding trade. Attempts at restraining that trade will logically be considered discriminatory as well as archaic.

    See

    http://www.mercatornet.com/articles/view/the_link_between_rented_wombs_and_gay_marriage/10987

    http://www.mercatornet.com/articles/view/surrogacy_a_global_trade_in_womens_bodies/15028

    Putting the emphasis on children, rather than on previous understandings of the natural family, will increase the role of the state, which will increasingly become the arbiter of who children belong to, regardless of where they came from.

  17. Leo,

    You’ve lost me. I can’t see how SSM leads to poverty and the complete disintegration of the family unit.

  18. I’ll go ahead and issue your penalty, Leo:

  19. Clark Goble says:

    Leo (2:31), it seems to me that in many divorces a lower standard of living might have been better than staying in a very unhappy or even abusive relationship. So I think we have to acknowledge that there’s not merely one factor to be considered here.

    Second it seems to me a lot of the changes in family structure are a cyclic pattern among the already poor tending to keep them there. Among the educated and much of the middle class traditional family is actually getting stronger the past years after a bit of turmoil in the 70’s and 80’s as people adjusted. The question then becomes over causation. How much is poverty driving poor family structure? While clearly there’s a chicken/egg issue the real question is whether getting people out of poverty improves family choices and it does appear to a certain extent it does.

    There is no doubt the primary victims of all this are children and particularly women. I’m not sure the analysis of what the causes tend to be is always good though.

    Steve (9:18) Court decisions are final in the short term but not necessarily the long term. Although obviously social conservatives have not seen any reversal of Roe v Wade they were hoping for. Yet we have seen change. Sometime due to amending the constitution but sometimes just due to changing views. That said, the social changes are going the opposite way for those hoping to see a reversal of this one. I can’t see this decision going the way of Dredd Scott.

    Sam Brunson (10:53) I think job prospects are one big issue. I think that getting people in poverty to significantly limit the number of children would also be helpful. (I know that’s controversial – the right doesn’t like the idea of subsidized birth control and the left sees it as blaming the victim) None the less I think for those who want to reduce poverty, abortion and a lot of other social ills at a minimum getting poor women to postpone families 10 years would have a huge positive social benefit.

    I also think there are changes to our education system such as pushing apprenticeship programs would be beneficial. Yet seriously reforming education seems a difficulty on par with solving the Israeli/Palestinian conflict. So I’m not optimistic. I think serious criminal justice reform such as changing funding methods (current system incentivizes shipping people to state or federal prison rather than short term jail) would also do wonders.

  20. Sam,

    “…are you suggesting that this is, in fact, the biggest change that marriage has ever seen?”

    I did not say that. It is, however, a big definitional change. Future history will judge how big. What, after all, is the definition of marriage? Teaching at a Catholic school, I am sure that you are aware of the ideas of substance and accidents, the latter may consist of things that don’t change the essence of the matter. Couverture can be viewed as an accident of marriage under English Common Law, not its essence. Trial by combat was once part of English Common Law. In such an era, having the man legally stand for the woman or the marriage was a protection to women.

    “…maybe you’re suggesting that we shouldn’t look at what’s negatively affecting marriage, and try to treat the actual problems?”

    Your comment, if I understand it correctly, begs the question about whether Obergell will lead to actual problems. I am very much for looking at all things that have and could in the future negatively affect marriage. The sexual revolution (e.g. the Hugh Hefner philosophy of sex) has in many aspects been an actual problem for marriage, don’t you? Obergefell can be read as putting a firm judicial stamp of approval on all aspects of the sexual revolution. I find it hard to imagine any consensual sexual activity, including the buying and selling of eggs and the renting of wombs, that couldn’t be proclaimed not only as legal, but as a fundamental right under the broad sweep of Obergefell.

    “Or maybe you’re just arguing for the sake of argument? “

    Quite the contrary. I care deeply about marriage and the family under the definitions and principles stated in the Proclamation on the Family. Do you?

  21. Josh Smith,

    It is easy to argue against someone if you put words in their mouth.

    I did not say, “SSM leads to poverty and the complete disintegration of the family unit.” Such an exaggeration and distortion really isn’t fair, but it is the sort of snarky comment I have come to expect from some quarters, though one might have hoped a Mormon-themed blog would have fewer of them. Maybe I am witnessing a form of entryism.

    I do maintain, as did Daniel Patrick Moynihan some years ago, that the disintegration of the family unit leads to poverty and other social ills.

    And I do maintain that the sexual revolution favors rich and well lawyered men over women and their children and has contributed to the decline of the naturally self-sustaining intergenerational family. San Francisco has many very well-to-do gay men (with or without SSM) with a great many impoverished Black single mothers in Oakland across the Bay and a below replacement fertility level between them. I don’t blame this on SSM or Obergefell. No, I blame this on the whole sexual revolution, e.g. the Hugh Hefner philosophy, which Obergefell sweepingly ratifies, strengthens, and exalts as fundamental constitutional law with some positive side remarks about spirituality of all things, and in Sam’s view does so both finally and infallibly.

  22. Leo, that wasn’t snark. That was good natured humor. Here’s a smiley face: :-)

    In all seriousness, you disagree with the legal basis in Obergefell. Let’s put it aside.

    What about Judge Posner’s SSM decision based on the Equal Protection Clause? I think Judge Posner made very practical arguments about the merits of SSM.

    (start on page nine-ish)

    http://pdfserver.amlaw.com/nlj/usca7_ssm_20140904.pdf