The Supreme Court's decision in Obergefell v. Hodges in June 2015 provided a dramatic turn in America's ongoing debate over same-sex marriage. Justice Kennedy's opinion speaks in emotionally evocative terms about the compelling societal and personal significance of marriage, holding that the right to marry is a fundamental right under the Fourteenth Amendment, a right that extends to same-sex couples. Justice Kennedy's rhetoric about the importance of marriage is noteworthy, even curious, given marriage's steady decline over the past 50 years. Just when it seemed that marriage was losing its significance in our society-because marriages are more easily ended, because alternatives to marriage have been created, and because fewer and fewer couples are choosing to formalize their relationships with marriage in the first place.
But Justice Kennedy's opinion strongly reinforces the idea that marriage remains relevant today, that it is something to be encouraged, revered, and protected. The proliferation of alternatives to marriage in recent years-e.g. civil unions, domestic partnerships and designated beneficiaries-has certainly contributed to the ongoing erosion of marriage as a meaningful legal institution, but because these options were created mostly to accommodate same-sex couples, who now have full access to marriage, one might argue that they are no longer needed. Clarity in the law will benefit from a return to bright-line rules, where nothing less than marriage itself qualifies individuals to enjoy and claim (1) legal status as a couple, gay or straight, and (2) the benefits that come with such recognition. At the same time, this would better serve the state's stated interest in promoting the security and stability of family relationships. Defenders of traditional marriage, or, those who believe that marriage is or should be meaningful, should seize the opening that Justice Kennedy's opinion has given them, and breathe new life into the institution of marriage by lobbying to eliminate its alternatives. In this sense, the Obergefell decision may not signal traditional marriage's demise as much as its rebirth, in an incarnation that is at once more inclusive and more robust.
30 BYU J. of Pub. L. 251 (2015).