Obergefell's Sword: The Liberal State Interest in Marriage

Abstract

Up until Obergefell v. Hodges, pro-marriage ideology was used to justify homophobic laws and the entrenched sexism of traditional marriages. Now that marriage equality is the law of the land, there is room for a new conversation over the meaning of marriage. Specifically, this essay argues that the proponents of traditional marriage were correct in asserting that the institution of marriage has benefits—intangible and tangible—that no other relationship currently provides to its members. Put another way, although those who defended traditional marriage were wrong with respect to their agenda, what if they in fact were absolutely right in that the marital relationship can provide something quite distinct and of great societal value?

After analyzing this proposition, this essay proposes a rethinking of the privacy doctrine. What if the right to be let alone—the prior means by which the citizen is best protected by the State—is in fact more harmful than helpful? This essay explores specific situations where the new state interest in the dignity of marriage paves the way for state intervention as a welcomed and needed benefit of marriage.