by Sherry F. Colb
In my column for this week on Verdict, I take up a question that Justice Alito posed during oral argument in Obergefell v. Hodges, in which he asked whether it would be possible, if the Court recognized same-sex-marriage (SSM) as constitutionally protected, to still refuse to recognize the right of strongly-bonded and committed but not romantically-involved couples to marry. I propose in my column that one could potentially answer the question "yes, one could distinguish the two" but that in truth, it is not clear why we would want to deny the status of marriage to committed couples who are not sexually affiliated.
In this post, I want to do things: 1) briefly discuss the stereotype about marriage (and certainly about having children) that the status of married couple and of parent tends to turn sexually-affiliated couples into Platonic couples, even though they were not that before, and then 2) raise a possible account of why people would pose the question that Justice Alito posed regarding the extension of marriage to Platonic couples.
Stereotype of Married People
The stereotype about marriage ending couples' sex lives is, of course, just that, a stereotype, but it is likely true that at least some number of married couples lose interest in having sex with each other after they marry and that other couples go through "dry spells," either because of illness, exhaustion, or stress. Yet few people would suggest that marriages in which the couples are either less interested in sex than they were before or no longer interested in sex at all have become "invalid" marriages that ought to void. Indeed, comedians have a field day with precisely this phenomenon, however limited or widespread, that people associate specifically with the status of being married.
So Why Deny Marriage to the Non-Sexually Involved
This reality, that some number of married couples have lost interest in having sex with each other, and the fact that the stereotype is even far more widespread than the phenomenon itself, adds one more reason to question Justice Alito's easy assumption that of course, we should deny non-romantically-involved committed couples access to marriage and that the alleged slippery slope involved in opening the door" to such marriages by recognizing SSMs might represent a reason to refuse same-sex couples the right the marry. To paraphrase what a (perhaps-not-especially-funny) comedian might say, "I thought sexless apathy in a couple was a revered tradition in marriage, so how can it be disqualifying?"
Implicit in Justice Alito's question, though, seems to be a view of marriage as valuable in part because it is "exclusive." Part of what makes it desirable for couples to marry, on this view, is the fact that there might be other couples who would like to marry (such as Platonic couples) but cannot, because the law limits the status to people like the first couple (whether the limit is based on sexual orientation or a sexual affiliation). Interestingly, this view resonates strongly with an argument against SSM that used to be more popular than it is now, the argument that if we want men and women to get married, we need to "defend" the institution of marriage for them against same-sex couples. It is a kind of segregation argument that says that if heterosexual couples are to move into the "marriage" neighborhood, then we need to keep out the "riff raff" (the non-traditional couples) or else the ones we really want will be turned off by their neighbors.
I am glad that people do not feel free to make this "defense of marriage" argument anymore, one that holds that the institution of marriage must be "defended" against being adulterated by undesirables. People rightly understand that such arguments trade in the imposition of stigma and discrimination, and making the arguments ratifies such behavior in the process.
But perhaps some of the hypothetical cases that the Justices presented to the litigants, including the one about Platonic couples, is simply another, more subtle, way of making the same point about adulterating a heretofore exclusive status by allowing "just anyone" to have access to it. If so, that is unfortunate. Unlike money, fancy cars, and memberships in prestigious clubs, one would hope that what motivates a couple to join together in matrimony is about love and commitment and perhaps a desire to raise children together, not the acquisition of a status that others will be denied. If marriage feels less valuable to a couple because "they" get to enter into it too, then perhaps that couple should reconsider the decision to marry.