On Marriage...some second thoughts

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.--Judge J. Kennedy writing for the majority in Obergefell vs Hodges (p.28).

Despite the fact that Judge Kennedy's closing paragraph is quoted approvingly widely (e.g., "beautiful" at Slate; it leads the story on the front page of the Financial Times), it is odd that a judge would omit justice and truth from his list of highest ideals (viz. "love, fidelity, devotion, sacrifice, and family.") While I am grateful that, say, nation and church are omitted from this list of highest ideals, or cardinal virtues, his perspective seems a bit limited. Even leaving aside truth and justice, what about, say, courage, fortitude, magnanimity, wisdom, and receptiveness and the ways these can be embodied in different institutions and practices?

Perhaps, we can read judge Kennedy as articulating only some of the highest ideals. But that seems unlikely. For, he is appealing to them in order to defend the claim that No union is more profound than marriage. And presumably he invokes all the highest ideals to justify this (rather metaphysical) claim.

What to make of the idea that marriage is the most profound union?

Profundity is not the natural habitat of these impressions.  So, I start with a critic (Leigh Johnson):

[It is] a fundamentally exclusive, overdetermined and state-sanctioned cultural institution-- which bestows civic and economic rewards for thoroughly undemocratic reasons entirely unrelated to merit, right or desert, which does so at the expense and to the detriment of more than half our democratic citizenry, which has no governing interest other than the managerial consolidation of private property and the compulsory regularization/normalization of sexual behaviors, familial structures and gender expressions-- has now been marginally modified by the highest court in the land to be a slightly-less-exclusive exclusionary institution...The actual institution of marriage, no matter how you look at it-- historically, religiously, culturally, politically, economically-- is and has always been about manufacturing, maintaining and regulating INequality.

I do not agree with Johnson's claim that the court's "modification" is marginal if only because it recognizes and sanctions as dignified more of the longings and aspirations of the citizenry. (And, also, it ameliorates known wrongs.) But she is right to restate (Plato's) point that marriage (among us) is about the consolidation of private property and the compulsory regularization/normalization of various behaviors in our "civilization" that is, alas, not beyond reproach. (I am married, by the way.) For Johnson the fact that marriage is about the generation and stabilization of inequality is a straightforward trumping reason to deny Kennedy's metaphysical claim (that marriage is the highest union).

But while there is much to Johnson's political point, when it comes to value I allow some inequality. So, I cannot appeal to her argument in good conscience. Even so, I have reservation's about Judge Kennedy's claims about marriage (while being pleased by his verdict). For, leaving aside the many ways in which the profundity of marriage can be the object of satire, he overlooks the fact that marriage itself is a place in which one can be condemned to live in loneliness (e.g., Mrs. Bovary, Anna Karenina, Edna Pontellier). More important, there are other unions that may be thought equal to if not higher than marriage:

• philosophical friendship;
• a fire-brigade;
• a platoon of soldiers;
• a dance-company;
• a surgical team.

This list is not exhaustive. Either way, the (martial) arts and sciences also generate unions in which we become greater than ourselves and, arguably, are fulfilled while being devoted to and sacrificing on behalf of the most noble values. After all, while embodying varieties of "love, fidelity, devotion, sacrifice," some of these unions deal with life and death, with care, and beauty (not to mention truth and immortality). Even if we allow that some marriages partake in our noblest ideals, the case has not been made that marriage is our most profound such union. Claiming profundity on its behalf may, in fact, distort its nature.

Comments

[Andrew C.]

This was a very interesting post.

Here is a curiosity:

Each of the "highest ideals" which Kennedy explicitly mentions seems to fit-along-side of, if not directly belong to, the category of virtues Hume calls the Virtues of Benevolence.

In contrast, Kennedy does not explicitly mention any ideal that so clearly fits-along-side of what Hume calls the Virtues of Greatness of Mind. This category of virtue includes magnanimity as well as “courage, intrepidity, ambition, [and] love of glory” (T 3.3.2.13).

I don't want to read too much into this. Kennedy's quote appears in a context in which the virtues of benevolence are more relevant than the virtues of greatness of mind, so the fact that Kennedy only explicitly alludes to the former is, perhaps, not surprising. Still: interesting.

[Michael Kremer]

I have two comments on this. The first is that in your opening sentences I think you misread Kennedy. I don't think he is saying: "love, fidelity, devotion, sacrifice, and family" are "the highest ideals."

I think he is saying "love, fidelity, devotion, sacrifice, and family" are ideals, they can be held in higher and lower forms, and in marriage they are taken (at least as ideals) in the highest forms.

The second comment concerns the question why he thinks marriage is the most profound union. It is related to the first. I think to understand him here we have to remember that Kennedy (like the dissenters Roberts, Alito, and Scalia – and like me) is a Roman Catholic. His argument, I think, is, fundamentally a Catholic one (whether you think that is a good thing or a bad thing is another matter). It depends on holding onto one aspect of traditional Catholic teaching about marriage (while separating this from other aspects of course!) -- that it is, at least in ideal, an irrevocable commitment, extending into the indefinite future, to one particular other, "until death do us part." Catholicism has held on to this teaching in a very strong form, with its refusal to recognize civil divorce and insistence on annulment (declaration that no previous valid marriage existed) prior to any subsequent marriage. But one can see marriage as embodying an ideal of the possibility of such a commitment without holding that every marital union is permanently indissoluble. It is a question of the meaning of entering into such acts, the value one places on the possibility of such a commitment.

I think for someone like Kennedy, the idea of marriage is inseparable from the idea of a voluntary choice to bind oneself to one other human being, "for better, for worse, for richer, for poorer, in sickness and in health." For many people there is something about this that is an ideal, which is why images of people who have lived such a commitment for decades finally being able to solemnize that commitment in a societally recognized ritual move so many. It is this commitment that is the reason why marriage was used as the image of the relationship between Christ and the Church (and before that between God and the Jewish people).

This, I think, is why marriage, for Kennedy, embodies the particular ideals Kennedy mentions in a "high" (or, some might prefer to say, "extreme") form, and why it is "the most profound union." Philosophical friendships, fire-brigades, platoons of soldiers, dance-companies, and surgical teams are not formed through a ritualized performative speech act in which a commitment is undertaken that is understood as binding and unconditional, as marriage is undertaken. This act is an act of avowing adherence to the ideals that Kennedy describes. It is not just (or even!) that the ideals are realized in any actual marriage. It is that the very act of entering into marriage is an explicit act of submitting to those ideals as ideals. At least, I suggest, something like this is what was in Kennedy's mind.

[Michael Kremer]

I forgot to mention Thomas in my list of Catholic dissenters from the decision -- and of course Sotomayor is Catholic as well.

[Eric Schliesser]

Dear Michael,
Thank you for your illuminating comments (I am especially grateful for the second to last full paragraph). However, I am inclined to think that some of the unions I point to also involve *binding and unconditional* commitments with ritualized performative speech acts (e.g., platoons of soldiers) or even oaths (medical types).

[George Gale]

I find Michael Kremer's comment totally à propos. One thing to add: for Catholics marriage is a) a sacrament; and 2) performed *by* the couple, not by the priest. As MK notes, it's a performative.