Berkeley prof: Why is marriage Supreme?

UC Berkeley Law Professor Melissa Murray is delighted with the result of the Supreme Court’s ruling on same-sex marriage, and she doesn’t want to rain on anyone’s Pride parade. But in the course of deciding that gays and lesbians have a constitutional right to wed their chosen partner, Murray thinks the court went overboard in portraying marriage as the Supreme — well, the supreme — human relationship.

“It was a love letter to marriage that makes everything outside of marriage look second-rate and wrong,” the professor of constitutional and family law said after Friday’s historic 5-4 ruling that overturned the remaining state laws against same-sex marriage.

She was referring to passages like this one from Justice Anthony Kennedy, early in his majority opinion: “The annals of human history reveal the transcendent importance of marriage. …Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.” Or this one, near the end: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than they once were.” Kennedy went on to say that the couples in four states who filed the lawsuits were not trying to redefine or degrade marriage, as their opponents contended, but instead to show their respect for it. “Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions,” he said. “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

That’s a fine conclusion, Murray said, but “for those of us who are interested n the project of respecting different kinds of family forms, in making things good for children of single-parent homes, a Supreme Court opinion that venerates marriage sends the message that everything outside of marriage is not worthy of dignity.”

The ruling comes at a time when many Americans are deciding they either don’t want to get married or can’t afford it, Murray said. She said marriage rates, which have been declining nationwide for many years, have fallen the most for the lower and middle classes.

Viewed in that context, the Berkeley professor said, “even in his most progressive moment, Kennedy is a throwback.”





Bob Egelko