Obergefell v. Hodge and the Future of Marriage

The recent Obergefell v. Hodge decisions has generated intense discussion about homosexuality, the nature of marriage, the power of the Supreme Court, the meaning of equality and rights, and the impact on churches as well as faith-based businesses and organizations. I don't care to jump into any of those conversation in this post. I would like to offer a different reason that this decision concerns me. In order to do so, I need to back up 23 years.

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Note the language from two previous Supreme Court rulings as related to existence, the meaning of life, and sexuality:

• In Planned Parenthood vs. Casey (1992), the court famously noted, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of life.” 
• In Lawrence vs. Texas (2003), Justice Kennedy wrote: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct. The instant case involves liberty of the person both in spatial and more transcendent dimensions.” 

If we can define our own concept of existence itself, and if we have freedom of certain intimate conduct along with liberty in spatial and transcendent dimensions, then this decision is hardly surprising. Justice Kennedy's opinion for the majority added several more important points to bolster the reasoning for granting equality to same-sex marriage:

• “[The homosexual’s] immutable nature dictates that same-sex marriage is their only real path to this profound commitment… Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”
•  “Two persons together can find other freedoms, such as expression, intimacy, and spirituality.”
• He wrote that personal choice regarding marriage "is inherent in the concept of personal autonomy."
• Kennedy also opined that "recognizing that new insights and societal understandings can reveal unjustified inequality within fundamental institutions that once passed unnoticed and unchallenged."*

If I understand this correctly, all sexual orientation is a normal, immutable expression of human sexuality, and the only real path to profound commitment is marriage. If all the aforementioned statements establish the precedent by which future cases will be adjudicated, I am concerned about where the next logical steps will take us.

What happens if psychiatrists and others determine other types of sexual relationships are normal, immutable expressions that have a right to a type of intimacy that can apparently only find experience profound commitment in marriage? Perhaps these, too, will be a case of how "new insights and societal understandings can reveal unjustified inequality within fundamental institutions that once passed unnoticed and unchallenged."

Lest you think me an alarmist, it's worth noting a number of trends that cause me to believe my concerns are legitimate. I’m not comparing homosexuality or same-sex marriage to any of those other scenarios (please read that again). I am simply pointing out that what the court has presented as a compelling argument for same-sex marriage may well make a logical argument for the others.

POLYGAMY

 Politico immediately posted an article entitled “It’s Time to Legalize Polygamy.” The author noted:

Welcome to the exciting new world of the slippery slope. With the Supreme Court’s landmark ruling this Friday legalizing same sex marriage in all 50 states, social liberalism has achieved one of its central goals. A right seemingly unthinkable two decades ago has now been broadly applied to a whole new class of citizens. Following on the rejection of interracial marriage bans in the 20th Century, the Supreme Court decision clearly shows that marriage should be a broadly applicable right—one that forces the government to recognize, as Friday’s decision said, a private couple’s “love, fidelity, devotion, sacrifice and family.” 

The question presents itself: Where does the next advance come? The answer is going to make nearly everyone uncomfortable: Now that we’ve defined that love and devotion and family isn’t driven by gender alone, why should it be limited to just two individuals? The most natural advance next for marriage lies in legalized polygamy—yet many of the same people who pressed for marriage equality for gay couples oppose it. 

This is not an abstract issue. In Chief Justice John Roberts’ dissenting opinion, he remarks, “It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.”

For better or worse, Politico appears to be right; it was only a matter of days before the polyamorous fireworks began. 

INCEST

Based on the language the court used, it will be interesting to see what logical or legal grounds they will use to stop consenting adults in a family from getting married.  A German ethics panel has already recommend that incest between adults become legal.  In the United States, this particular story has been brewing for some time, (“Woman tells magazine she's 'marrying' her father, moving to N.J.”). I suspect it will only continue to heat up. Lawrence vs. Texas actually paved the way for this. A Time article from 2007 entitled "Should Incest Be Legal" noted:

In Ohio, lawyers for a Cincinnati man convicted of incest for sleeping with his 22-year-old stepdaughter tell TIME that they will make the Lawrence decision the centerpiece of an appeal to the Supreme Court. "Our view of Lawrence is a fairly narrow one, that there is a Constitutional right under the 14th Amendment's due process clause that says private consensual activity between adults cannot be criminal," said J. Dean Carro, the lead lawyer for Paul D. Lowe, the former sheriff's deputy sentenced in 2004 to 120 days in jail after pleading no contest to incest.

The Times noted that, at the time, the Court "rejected the plantiffs' argument that Lawrence created a new fundamental privacy right that made laws restricting consensual, private sex among adults unconstitutional." Obergefell v. Hodge may well take care of that hurdle.

PEDOPHILIA

Hear me out on this one. Keep in mind I am exploring the idea of trajectories, not exposing current realities. What will we do if pedophilia (or 'intergenerational intimacy') gets a status upgrade such that it is "a normal expression of human sexuality and immutable"? The APA does not classify pedophilia as an orientation (it’s a pedophilic disorder), but as I look at news stories around the world, the orientation movement is clearly gaining momentum.

• The Telegraph covered a conference at the University of Cambridge in which the claim was made that “paedophilic interest is natural and normal for human males.” 
• The LA Times believes that it is “as intrinsic as the next person’s heterosexuality.” 
• The Guardian noted in “Paedophilia: bringing dark desires to light”: “In 1976 the National Council for Civil Liberties, the respectable (and responsible) pressure group now known as Liberty, made a submission to parliament's criminal law revision committee. It caused barely a ripple. "Childhood sexual experiences, willingly engaged in with an adult," it read, "result in no identifiable damage … The real need is a change in the attitude which assumes that all cases of paedophilia result in lasting damage."
• In an article entitled, “Is Pedophilia A Sexual Orientation,“ the Toronto Star noted:“Pedophilia has been widely viewed as a psychological disorder triggered by early childhood trauma. Now, many experts see it as a biologically rooted condition that does not change — like a sexual orientation — thanks largely to a decade of research by Dr. James Cantor at the Centre for Addiction and Mental Health. Cantor’s team has found that pedophiles share a number of physical characteristics, including differences in brain wiring. It’s now thought that about 1 to 5 per cent of men are pedophiles, meaning they are primarily attracted to children. These findings have been widely accepted among scientists, but have had little impact on social attitudes or law. However, we are left with the alarming question: if some men are born pedophiles, what should society do with them?”

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As neutral as the Court seeks to appear, public opinion may carry more weight than we realize in these discussions. Considering the way in which polygamy, incest and pedophile are viewed by the public, I suspect  these three things will gain momentum in the order I listed them. I predict polygamy will be legal within 5-10 years, and incest between consenting adults within 15 years.

Pedophilia has more hurdles than just public opinion (such as age of consent). However as the age of consent continues to lower around the world  (it's currently 14 in Austria, Bulgaria, Estonia, Germany, Hungary, Italy and Portugal) and our culture relentlessly sexualizes teens and children (thanks in no small part to the reality of pedophiles in the entertainment industry), increasingly younger children will be perceived as capable decision makers in sexual situations. If these trends were combined with an 'orientation' upgrade and a favorable public opinion shift, the Supreme Court's own logic seems to point toward marriage. It's a long shot, but it's not as far away as it once was.

I am very open to being argued out of my concerns. I would like to be wrong; I worry that I am not.

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*There are plenty of questions that could be asked of the SCOTUS decision: Do all immutable characteristics automatically come with the same protections and rights? What is meant by 'normal expression'? If intimacy is a freedom, is it now a right, and to what extent? While I believe these questions deserve to be addressed more thoroughly, they are outside the purview of this post.