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Cohabitation, dating and nonmarital sexual partnerships, on the other hand, confer almost no such benefits and are not legally or socially linked with any of these advantages.
This is why same-sex marriage advocates were not satisfied to remain at the level of cohabitants or unmarried intimate partners.
Because he understood marital status as inherently communicative, Kennedy added that a refusal to grant it to same-sex couples communicates stigma and would “disparage [same-sex couples’] choices and diminish their personhood.” Thus, whether or not the vendors or even the affianced couple participating in a marriage ceremony agree or disagree with the messages conveyed by marital status, a state-recognized marriage communicates those messages.
And a wedding cake in every case celebrates what the state-licensed marriage expresses. But the Constitution forbids the state from compelling a citizen to endorse what he or she does not believe, by “word or act.” As the Supreme Court held in , “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” This principle has been upheld in cases (such as ) in which the complainant was not being asked personally to endorse the expression at issue.
In , the speaker — the baker – does not wish to be associated with – in fact, to celebrate – the inherently expressive event of a state-recognized same-sex marriage. ’s holding applies equally to both situations: “[A] speaker has the autonomy to choose the content of his own message.” The Supreme Court should appreciate the irony of the same-sex couple’s position in rode to the establishment of a constitutional right to same-sex marriage on the back of the idea that “marriage” is an intrinsically and loudly expressive status in American law and society.
That to have this status expresses as nothing else can the full equality and dignity of same-sex individuals and couples, and is a resounding statement that there is no difference between procreative and nonprocreative unions, or households facilitating children’s linkage with their natural parents and those inevitably severing it.
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Marriage is also the predicate for over a thousand government-conferred benefits.
Below, I treat briefly the legal tradition of marriage as a public status, same-sex marriage advocates’ and the Supreme Court’s reliance on this tradition in court noted that every state attaches myriad “obligations and liabilities” to the marriage contract because the public has a “deep interest” in marriage.
This is because marriage is the “foundation of the family and of society, without which there would be neither civilization nor progress,” the relationship that is “the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life, and the true basis of human progress.” States’ valorization of marriage can be understood more clearly by comparing the benefits and positive connotations associated with marriage to the situations of cohabitation, dating and nonmarital sex.
This is because long-established marriage law, adopted in every state, explicitly endorsed by the Supreme Court, and resoundingly affirmed in , holds that marriage is never just a private contract between two people, but always also a “status” – bestowed and contented by the state, and by the interaction of law with social norms and meanings.
According to this law, marital “status” is the legal and social recognition that the marital union is specially favored because it forms the “keystone of the social order,” is the most favorable and stable place for sexual expression and childrearing, and is a public sign of fidelity, permanence, maturity and social responsibility.