After Obergefell: Finding a Contemporary State Interest in Marriage

Abstract

In June 2015, in Obergefell v. Hodges, the Supreme Court established that same-sex couples have a fundamental right to marry. The decision articulated a sweeping defense of marriage, specifically the dignity that the institution provides to its participants and the society as a whole. Many liberal critics have assailed this decision, citing concerns that the reification of marriage---and the tangible benefits of marriage---comes at the cost of disadvantaging non-marital families, a population equal to the number of those who marry. This essay is a counterintuitive attempt to realize that marriage can offer protections for vulnerable populations. Specifically, in the immigration context, when a citizen marries a non-citizen, marriage has the unique means to extend protections otherwise not available under immigration law alone. In this respect, Obergefell is not simply a marriage case but a potential to understand that State intervention may be a welcomed protection for many.