Putting aside legal arguments about hidden autonomy rights in the Fourteenth Amendment, the Court justifies its decision on the basis of the “new insight” that procreation is accidental to marriage. Its warrant for this claim is that social changes, including recognition of the equal dignity and rights of women, “have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential” (2, my emphasis). Thus, the Court claims, there is precedent for the view that the procreative potential once thought essential to marriage is in fact no more central to the institution than the race, precedents embodied in the Court’s previous affirmation of liberty rights to contraception and sodomy in Griswold and Lawrence. Rather, the Court now believes that what is essential to marriage is the autonomy right of “self-definition” in one’s intimate relationships and the right to be esteemed for this choice.
If this claim about the essence of marriage was either true or insightful, it would indeed be momentous. Unfortunately, it is neither. The Court’s argument rests on an insidious and profound misunderstanding of what “essential” means””let alone what the essence of marriage is””and a majoritarian understanding of moral progress. While real moral progress often does require us to distinguish what is essential from what is accidental””as when the Court correctly held that race is accidental to the institution of marriage””the Court’s current use of the term invalidates the very distinction it wishes to invoke.
Read it all.
(F Things) Joshua Schulz–False Enlightenment at the Court
Putting aside legal arguments about hidden autonomy rights in the Fourteenth Amendment, the Court justifies its decision on the basis of the “new insight” that procreation is accidental to marriage. Its warrant for this claim is that social changes, including recognition of the equal dignity and rights of women, “have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential” (2, my emphasis). Thus, the Court claims, there is precedent for the view that the procreative potential once thought essential to marriage is in fact no more central to the institution than the race, precedents embodied in the Court’s previous affirmation of liberty rights to contraception and sodomy in Griswold and Lawrence. Rather, the Court now believes that what is essential to marriage is the autonomy right of “self-definition” in one’s intimate relationships and the right to be esteemed for this choice.
If this claim about the essence of marriage was either true or insightful, it would indeed be momentous. Unfortunately, it is neither. The Court’s argument rests on an insidious and profound misunderstanding of what “essential” means””let alone what the essence of marriage is””and a majoritarian understanding of moral progress. While real moral progress often does require us to distinguish what is essential from what is accidental””as when the Court correctly held that race is accidental to the institution of marriage””the Court’s current use of the term invalidates the very distinction it wishes to invoke.
Read it all.