By Elizabeth Adams
When the Supreme Court ruled to overturn the case Obergefell v. Hodges and legalize gay marriage in all fifty states, my Facebook newsfeed exploded into rainbows, often accompanied with the mantra “love wins.” I was happy as I scrolled through ecstatic status after ecstatic status, but I was also slightly irked; it felt like the repetition was beginning to gut the decision’s significance: how many people actually know the legal ramifications of the decision? You can’t argue with love in a court of law. And then the more cynical: What does love actually have to do with it?
Let me first clarify that I firmly believe in the right for same-sex couples to get married and that the Court’s legal reasoning is sound. Marriage, and, by extension, the family, remain the foundational building blocks of our society and the exclusion of same-sex couples from these institutions is clearly unjust. But I do not believe that the language of law can expand or deepen love, nor do it justice.
Kennedy conflates marriage with a supernatural phenomenon, as if the legal recognition will strengthen a couple’s emotional commitment
With the exception of James Obergefell, who wished to be listed as the official spouse on his husband’s death certificate, the two other plaintiffs’ cases were concerned with injustices that stemmed from their relationships not being legally recognized. Both members of one couple could not get custody of their children, and another couple had difficulties moving from one state to another because the legal status of their relationship could change, granting marital rights and benefits in one place, only to have them denied in another. Although those two cases exemplify tangible, substantive injustices in the eyes of the law, Justice Kennedy chose to argue that same-sex couples were also unjustly excluded from a “dynamic [that] allows two people to find a life that could not be found alone, for marriage becomes greater than just the needs of two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.” As Jesse Dorris observed in Slate, Kennedy conflates marriage with a supernatural phenomenon, treating it as if the legal recognition will somehow deepen and strengthen a couple’s emotional commitment to each other while simultaneously using a romantic language that transcends legality altogether. The dissenting justices were right to accuse him of being lofty and gratuitous.
Kennedy notes that the purpose of marriage has evolved with time. It is no longer based on political, religious or financial concerns and has morphed into a “voluntary contract” between two persons. The depth of emotional commitment becomes the primary reason to get married. In his new book Modern Romance, Aziz Ansari comments that men and women are no longer looking for security but soul mates. Kennedy may sound sickeningly romantic, but he is also tapping into our own collective fantasies about what marriage is supposed to be, when it still remains an institution with a purpose that is larger than recognizing the love found between two individuals. It is still the primary building block of society, to provide a stable space to create and rear children. Although we have more freedom about when and who we choose to marry, it is a matter of duty. Kennedy opines that love and duty are one in the same.
Scalia depicts marriage as an abridgment of love, and reflects both its legal language and its purposes with more accuracy
In a predictably vehement and obnoxious concurring dissent, Justice Scalia makes an almost comical aside: “Who ever thought that intimacy and spirituality (whatever that means) were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.”
As sarcastic and condescending Scalia meant to be, his depiction of marriage as an abridgment of love rather than its expansion reflects both its legal language and its purposes with more accuracy, even if it happens to be heartless.
In her essay, “The Family, Love it or Leave it,” which appeared in The Village Voice in 1979, cultural critic Ellen Willis argues, like Scalia, that the contractual, legal nature of marriage stifles love. But unlike Scalia, she believes that this stifling of passion is also an injustice. She explains that “by equating emotional commitment with the will to live up to a contract, we implicitly define passion as unserious, peripheral to real life,” which suggests that passion and emotional commitment will fade while the contract of marriage remains.
Hookup culture is a way of capturing all the spontaneous passion we can get before we decide to settle down.
The conflation of love with a legal contract leads to the presumption that the purest, deepest form of love is permanent. That despite other changes in the span of a lifetime, love will evolve and remain a constant. This mythology of permanence bleeds into the worth placed on any romantic relationship. Something fleeting can only be lust and a breakup implies that the love was weak or flawed or it wasn’t love at all. The ending of a relationship does not just imply failure; it also implies meaninglessness.
Willis continues, “I suspect that in a truly free society sexual love would be at once more satisfying and less terrifying, that lovers would be more spontaneously monogamous but less jealous, more willing to commit themselves deeply yet less devastated if a relationship had to end.” In other words, without the pressure of permanence, we would love more freely and with less fear if we accepted that love—like so many unexplainable, transcendental experiences—as something that does not last forever. In doing this, we can, without fear, give credence to our feelings as meaningful, as deep, even if they run the risk of fading.
The millennial generation, myself included, has witnessed how the legal contract of marriage outlasts love. Our parents, with a few exceptions, have either divorced or remained in a relationship where the passion has been spent. Yet according to recent studies, 90 percent of college students, both male and female, say they want to get married. On the surface, hookup culture may look like a rejection of commitment when, in fact, it is a way of capturing all the fluid, spontaneous passion we can get before we decide to settle down.
Personally, I have found that hookup culture has allowed me to explore my sexual needs and desires more thoroughly—but emotions lie on the periphery. I draw up contracts and timelines for myself: Should you be feeling this way? You’ve only been on two dates. Don’t get too excited are often the lectures echoing in my head when I begin to “catch feelings,” a phrase that treats them as a disease that can be stamped out with reason or logic. We act as if feelings that remain unspoken will not come into existence. But my emotions, my passions, my lusts will be what they are even if they remain amorphous. I am more afraid of them than rejection because they don’t fit the rigid language of a contract, I fear that they are premature or won’t endure, and if a relationship (or whatever it is called or not called) ends, this does nothing to shield me from the hurt.
Love, or what may lead to love, requires language, but not a legal language that stifles, constrains and ultimately compartmentalizes it into one thing. Love does not require an ultimatum, but a dialogue. A dialogue that may be imperfect, even banal at times, but nonetheless provides a structure that can contain the fluid meaning and depth of our emotions without the weight or pressure of forever: a language that allows our emotions to take form in the time that they are felt and acknowledged as such without shame or fear.
Of course, giving such primacy to love would require a radical transformation of society and the laws that govern it. Such a change would not only change the nature of relationships but child rearing and structure of the family as we have known it for centuries.
I think that many of us, including myself, harbor a secret fear that doing away with marriage would abolish the language and structure of love altogether. We want that ceremonial recognition because at moments, the love we feel will feel like forever, merging seamlessly with the contractual language of marriage. That is why weddings are so beautiful, this is why I still “like” engagement photos and announcements on Facebook. If anything, the beauty and celebration is the form that love deserves. But there is no way of knowing if that those forevers composed of nows will last, because love is not a contract. If it lasts, it does so freely. There lies the joy and terror of it all, the joy and terror we should start trying to embrace rather than nullify.