Justice Anthony Kennedy of the Supreme Court of the United States



The Supreme Court seems to know a lot about marriage, Justice Kennedy especially. His Honor says once gays get married they’ll radiate dignity, and autonomy and spirituality. Sad to believe they’ll need all that. The wife and I destroyed each other’s dignity and autonomy right after our honeymoon. Odd thing: we’ve been happy ever since.

Year one, her chief object was to keep me from wearing cargo pants. No man was ever taken seriously wearing them, she said. Next she separated me from an old pair of wingtips and a loose fitting seersucker suit. My bow ties disappeared too.

She didn’t win much dignity or autonomy marrying me either. I made her eat Middle Eastern food and read bad poetry. My poetry. I pressured her into foreign adoption which at the time didn’t seem as invasive of her personal autonomy as the Lebanese food and the bad poetry.

We didn’t realize we should have focused on what Judge Kennedy calls the business of making “intimate choices that define personal identity and beliefs.” Who knew what we were missing?

Looking back on my marriage in the light of Obergefell v. Hodges I should feel sorry for having robbed my wife of so much self-esteem, and dignity, and autonomy, but I just can’t. Unmarried, she would have become one of those spinsters who go mad for photographing tiny dogs, chairing save-the-world causes, and becoming opinionated, in public places, after her second glass of wine. I just had to push past all that dignity and self-esteem and go on and try to change her.

Similarly, my wife knew that, unmarried, I would have become even more stuffed with plummy self-delusions. Fifty pounds overweight, a devotee of rare books, I haunted the Philosophy and Religion sections of used book stores looking for old editions of Plato in Classical Greek. A real catch, don’t you think? Oh, and I could read Classical Greek.

On our first date she had me down as a rescue dog. She knew what she had to do: destroy my autonomy, dignity, and spirituality.

Had Justice Kennedy been our marriage counsellor we might have seen that marriage is about finding new “freedoms, such as expression, intimacy, and spirituality.” Unfortunately, not knowing Justice Kennedy, instead of respecting each other’s autonomy, we just went on dragging down all that nobility and spirituality that gay couples are no doubt going to experience.

Kennedy’s strained poetry v. Scalia’s realism

For anyone who wants to kill a day reading it, Obergefelll pretends to be 103 pages of legal reasoning. However, it’s better understood as a talk-radio spat between two opposing marriage counselors who want to get each other’s license revoked. Kennedy’s vision of marriage is an endless California honeymoon at some former monastery converted to a personal growth center. The dissenters’ vision more like episodes of “The Honeymooners” run all night, back to back.

The duel between Kennedy and Scalia was technically over the meaning of the 14th Amendment and “substantive due process.” However, the culture war rages loudest in Kennedy’s strained efforts at poetry, and Scalia’s brooding sarcasm. Kennedy’s view is that marriage marinates the betrothed in an old-vine, premier cru of dignity and self-esteem. He writes, “The lifelong union of a man and a woman always has promised nobility and dignity to all persons without regard to their station in life …” Kennedy’s opinion claims marriage allows a couple “to define and express their identity.” Scalia insults this poetic rhetoric as “the mystical aphorisms of the fortune cookie.”

Imitating the iconoclastic style of H. L. Mencken, Justice Scalia points out that where Kennedy finds “expression, intimacy, and spirituality” to be the cocktail fizz of conjugal bliss, most married people would only find shallow naiveté. “Who ever thought that intimacy and spirituality …were freedoms?” he grouses. Then Scalia slyly observes, “one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie…” Finally, with a thumb to Kennedy’s eye, Scalia points out how rare freedom of speech can be in a real marriage. He writes, “Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.”

Justice Scalia wants to confront Kennedy’s marriage poetry with the workaday realism of the very married. He writes like a man who has been worn down by fifty years of eating dinner with his in-laws each Sunday.

The learned justice is talking about a different institution

Could it be that these visions are so radically different precisely because gay marriage is so radically different regarding self-respect and autonomy?  Here a certain reliance on generalities or even clichés becomes necessary.  

You can often tell if a heterosexual is married. He or she has no dignity or autonomy. The traditionally married person often has the air of slight obliteration, like a towhead in the Mississippi pummeled by rain. Bristling with mud splats, she or he looks about to erode — any moment — into another sandbar either in Missouri or over in Illinois.

And it’s all good. To heterosexuals, the purpose of two-becoming-one is to remedy the defects in the spouse, and become yourself remedied by an unlovely joining to the opposite shore. Straight people seem to need this part of marriage more than gays. Without this altering, long unmarried hetero-sexual men and women become verifiably strange. When I say my fiancée was saved by marriage from becoming an opinionated spinster, I don’t mean opinionated like the women on “The View”. I mean opinionated like Unity Mitford at the 1936 Berlin Olympics, or Jane Fonda in Hanoi. When I say I was a “rescue dog” I mean the kind with the tail of a collie and the face of a pug.

By contrast, gay men and women, coupled or not, seem to thrive in their relative independence. The men see a lot of opera — yes, it’s a cliché — and get asked to dinners where the husband of the house sits quietly, wondering where his wingtips went. A fountain of sparkling badinage ripples at the gay end of the table while straight husband misses his cargo pants. Single gay men don’t become strange, they become teachers, artists and raconteurs. Equally, gay women in solitude do not become myopic spinsters. They become professors or fastidious small business owners.

Gays are different. Thus their “dignified” and “noble” marriages may represent not an enlarged and changed institution of marriage, but rather a whole different institution.

Exhibit A: fidelity

There is no better indication of how hugely different this new institution might be than the hints we get in liberal publications that gay marrieds are changing the rules on sexual fidelity. The New York Times tells us that a San Francisco study revealed “how common open relationships are among gay men and lesbians in the Bay Area.” Colleen Hoff, the study’s top investigator said of sex outside of gay marriage, “With straight people, it’s called affairs or cheating but with gay people it does not have such negative connotations.”

Gay writers themselves have weighed in with varying conclusions as to the severity of the fidelity deficit in gay marriage. The fact of a persistent discussion among gays themselves underlines two things about Justice Kennedy’s analysis. The first is that, despite Kennedy’s emphasis on the dignity of the same-sex marriage, if gay marrieds should prove unable to at least match the low bar of heterosexual fidelity, then all Justice Kennedy’s rhetoric about their newly won “dignity” and “spirituality” will be empty. Fidelity is the only real creator of dignity in marriage. No one has dignity who must erase his text messages before he gets home each night.

The second thing the putative fidelity gap underscores is that Kennedy and co’s jurisprudential necromancy over magic phrases like “substantial due process” may have conjured up a radically new social institution. I don’t know whether to call it gay marriage, or Kennedy marriage, or something else. I’ll settle on calling it marriage as depicted in Truffaut films of the 1960s. Or, perhaps it’s best to call it marriage as in any Woody Allen film of the late 1970s, 80s and 90s.

Gay marriage may indeed evolve into something categorically different from what most straight folks at least pretend marriage to be. The simple reason is that gay Americans are different. We may not fully recognize this for twenty years, but by that time it will not matter anymore.

By 2035 the U.S. Constitution will have recognized so many couplings, and triplings, and quadruplings as having Justice Kennedy’s “dignity” and “autonomy” that gay marriage will have come to seem one of the tamer acts in an ever expanding circus brought to you by the learned judges of America.

Mark Milburn is a Midwestern businessman with a wife, three children, two dogs and a master’s degree in philosophy. 

Mark Milburn is a Midwestern businessman with a wife, three children, two dogs and a master's degree in philosophy.