The culture of sentimentality
Why same-sex marriage likely will not fall in a post-Roe world
With tedious predictability, President Joe Biden is now claiming the overturning of Roe v. Wade will likely lead to the overturning of the U.S. Supreme Court’s ruling in Obergefell v. Hodges, the case that found protections in the Constitution for same-sex marriage. Such is, of course, the standard scaremongering bombast that has marked democratic politics on both sides of the political divide. Yet the issue he raises is an interesting one.
Of course, in making the issue one of privacy, President Biden certainly understands the nature of the Roe ruling. Oddly, however, he seems rather clueless about Obergefell, where privacy was not an issue in the court’s majority decision. That judgment rested on four principles: personal autonomy, the right to marry as a means of expressing a unique relationship between two individuals, the protection of children’s rights, and the importance of marriage to society. If Roe is overthrown because of the privacy argument it embodied, that should not directly affect Obergefell.
Yet, the question of whether same-sex marriage might fall is an interesting one, even though President Biden set up the issue rather incompetently. The answer is that it should but it likely won’t, an answer that takes us to the heart of our modern culture.
Behind the logic of overturning Roe lies a notion of what it means to be human that is far more realistic than what the advocates of abortion hold. Another Supreme Court decision likely to be overruled at this point is Planned Parenthood v. Casey. It was in this ruling that Justice Anthony Kennedy inserted his mystical notion of free-floating, self-determined personhood into the history of U.S. constitutional law. Yet this is nonsense. At a commonsense level, every society has to make decisions about what constitutes a person, and all members of a society have to conform to those decisions. No human being is born free. We are all born into a network of dependencies and obligations that define who we are. They may change over time, but dependencies and obligations are always there, defining us at our deepest level. And marriage does that preeminently through its creation of a unique bond marked off from other friendships by a unique act that can also lead to the creation of new and dependent life. This bond is also marked by a lifelong commitment to one partner, to be dissolved only under the most extreme of circumstances.
This is where abortion and same-sex marriage do have an affinity. The former makes the creation of new life merely the collateral damage of sexual intercourse and denies the obligations that are inextricably connected to pregnancy. The latter, building upon the logic of no-fault divorce, makes marriage a sentimental bond, to be dissolved once the emotional needs of one or both parties are no longer being met. Both, in other words, draw deeply from the kind of thinking that Justice Kennedy articulated in Casey. As abortion falls, one could therefore make a case that same-sex marriage should fall, too.
However, this will likely not happen for reasons that have nothing to do with moral logic and everything to do with moral imagination. Sentiment, rather than clear thinking, tends to guide so much of our ethical debate today. A clear example is the hesitation many pro-lifers have with the hard abortion cases involving incest and rape. Here, they argue, exceptions should be made. But why? If the argument against abortion is that the child in the womb is a person, then that personhood does not depend upon the nature of the act that led to conception. The lack of consent or intention should not affect the status of the child any more than the failure of contraception by a consenting couple.
This is not, of course, to say that cases of pregnancy by rape and incest should not be accorded special treatment in terms of the high level of sensitive care and support that needs to be shown to the victims and the children. But it is to say that the logic behind this argument is a sentimental one, at odds with the underlying pro-life case. That it is so powerful even among those sympathetic to protecting children in the womb speaks to the power of sentiment in our political culture. Such a culture sees the immediate emotional needs of the obvious victim as decisive. The hidden victim is easily forgotten.
And that is why same-sex marriage likely will not be overturned. It accords with our current sentimental culture. To quote Thomas Jefferson, “It neither picks my pocket nor breaks my leg.” It makes the individuals involved happy, we are told. Nobody seems to suffer. And those utilitarian criteria are all that our current world really cares about, as the abortion debate, even sometimes within the pro-life cause, indicates.
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