Justice Alito Asks Whether Non-Romantic Couples Should Have the Right to Marry: Absurd Question?

Posted in: Civil Rights

During arguments in Obergefell v. Hodges, the same-sex marriage case argued on April 28, Justice Alito posed the following friendly question to John J. Bursch, the attorney arguing against a constitutional right to same-sex marriage (SSM): “If the reason . . . for marriage is to provide a lasting bond between people who love each other and make a commitment to take care of each other, . . . do you see a way in which that logic can be limited to two people who want to have sexual relations . . . ?” Mr. Bursch obligingly responded: “. . . it can’t be.” To restate the question: What if two people who are not romantically involved with each other wish to form a commitment together? Is there any reason to deny them a marriage license once same-sex couples are extended the right to marry?

Justice Alito plainly meant the question as a reductio ad absurdum, suggesting that if the Court were to recognize a right to SSM, then there would be no logical principle by which it could distinguish the pair of individuals with a purely Platonic relationship who wished to be married to each other. The unstated premise is that protecting a right of non-sexually-affiliated couples to marry would be ludicrous. In this column, I will critically examine this premise and consider the possibility that we should not be demanding a sexual affiliation as a prerequisite to marriage.

Distinguishing Between Platonic Marriage and SSM

Before turning to the question of whether what I will call “Platonic marriage” (marriage between two people who are not sexually affiliated with each other) ought to be available to people, let us first respond to Justice Alito’s question on the merits. If the Court were to recognize a right to SSM, how could it avoid the slippery slope to recognizing Platonic marriage? One answer that leaps to mind is that the recognition of SSM is no more challenging to the exclusion of Platonic couples from the institution of marriage than is the already-universal recognition of opposite-sex marriage (OSM). That is, OSM presumes a sexual affiliation between the parties to a marriage, such that a man and a woman who are best friends but have no romantic feelings for each other and have no intention of ever having a sexual relationship would not be eligible for the status of a married couple (at least to the extent that one cares to inquire into their romantic intentions, as might occur in an immigration case of alleged marriage fraud). Recognizing SSM therefore leaves in place the rule that married couples must be sexually affiliated with each other, and it merely expands the variety of sexually intimate couples who are eligible for that status. Therefore, to the extent that Justice Alito believes that the law currently has a principled basis for excluding Platonic couples from the institution of marriage, the extension of marriage to same-sex couples would do nothing to destabilize the foundation of that principle.

Challenging the Limitation of Marriage to Sexual Affiliates

In her fascinating and important book, The Neutered Mother, The Sexual Family, and Other Twentieth Century Tragedies, Professor Martha Fineman argues that not only is it wrong to limit marriage to sexual affiliates, but it would make far more sense to limit such state-sanctioned status (with the corresponding benefits) to people entering into a relationship of care and dependency. Professor Fineman discusses the reality that in human society, there are inevitable dependencies (those dependencies experienced by children, the elderly, and the disabled) and there are derivative dependencies (those dependencies experienced by the people who take care of the children, the elderly, and the disabled and who might accordingly be unable to work for pay and thereby meet their own needs). An example of a derivative dependency is the relationship between a mother and her baby—though the mother might ordinarily be capable of taking care of herself, the inevitable dependency of her baby takes up all of her time and could thus might make her dependent. The government ought, then, to recognize her relationship with her baby (and perhaps solemnize it in some way) and accord benefits to the mother that enable her to care for her baby (without her having to marry someone who will provide private support for the two dependents—inevitable and derivative). Fineman’s approach seeks to expose and provide protection for the dependencies that conventional marriage tends to obscure.

One need not take Fineman’s exact approach to marriage or state-sanctioned unions to recognize that some families are in greater need than others of state support, in the form of benefits, and that such families do not neatly correspond to the presence of a sexual affiliation between two of the parties. What Fineman’s work does an outstanding job of exposing are: (1) the fact that if one is truly concerned about the wellbeing of children and other dependents, as opponents of SSM claim to be, then one will focus less on the sexual relationship between the adults (or the absence thereof) and more on the commitment of those adults to providing care for their dependents; and (2) the fact that if what really matters in marriage is the commitment of the adults to facing life’s challenges (including dependencies) together, then the presence or absence of a sexual affiliation ought to be likewise irrelevant.

For a concrete example, consider a pair of identical-twin cousins of mine, whose pseudonyms for purposes of this column will be Sandra and Francine. Sandra and Francine are both heterosexual women, and each has been married or had boyfriends or both. Nonetheless, the two women have, for as long as I have known them, lived together in one house (even when one or the other was involved in an intimate relationship with a man) and has reserved her greatest affection and care for her twin. Husbands or boyfriends might move into the women’s home, but it was plainly their home into which the man was moving.

Both women are in their late eighties now, and neither of them is married or has any children. Yet they are completely fulfilled in their love for each other, which is entirely Platonic in nature. It may well seem arbitrary that Sandra and Francine do not have access to the same governmental benefits as a married couple would, including the right to file joint tax returns and the right to inherit from each other without having to pay estate taxes (though I candidly cannot conceive of one being able to survive for more than a few days without the other’s presence in the world). One can imagine other, biologically unrelated, best friends who might wish to form similar partnerships that would take priority over all other relationships (in the way that marriages are typically thought to do, whether or not there are children). Why should the potentiality or actuality of sexual intimacy determine whether the State dignifies such relationships with the status of “marriage” (or its equivalent)? Does the State truly have an interest in insisting that a married couple’s commitment be romantic?

Sexual Orientation Discrimination

There is one respect in which Justice Alito’s question, asking how a proponent of SSM would be able to distinguish non-romantic couples, could potentially pose a difficult dilemma. I suspect that Justice Alito was not thinking of this (following) possibility when he asked his question, however. As I noted earlier, SSM’s and OSM’s share the feature of sexual affiliation and are therefore equally distinct from marriages that might involve two people who are only Platonically affiliated, or in the diminutive way we tend to describe such relationships, “are just friends.” Yet one primary argument for recognizing SSM as a matter of constitutional right is that to do otherwise is to discriminate on the basis of sexual orientation, and being sexually oriented toward one’s own sex is not the only sexual orientation besides being oriented toward the opposite sex. As scholars like Professor Elizabeth Emens have observed, some people have an asexual orientation; that is, they are not interested in having sexual relationships with others, regardless of sex or gender. An asexual individual is distinct from someone who is celibate, because a celibate person could be sexually attracted to people of the opposite sex and/or people of the same sex but either choose celibacy nonetheless (as a Catholic priest or nun might do) or finds it difficult to locate a willing partner. An asexual person, by contrast, is someone who is not inclined toward having a sexual relationship with any other person.

For an asexual person, perhaps the last letter represented by LGBTQA (at least according to some), the sexual affiliation prerequisite to marriage disqualifies him from ever being able to marry someone of his choice, someone who is perhaps also asexual and would like to be able to form a socially-recognized and benefits-eligible bond with the person whom she loves and with whom she wishes to spend her life but who is not romantically inclined toward that person, because her sexual orientation is asexual. For such individuals, the recognition of SSM, to the extent that it renders sexual-orientation-discrimination cognizable as an impermissible ground for denying marriages, would arguably make it difficult to distinguish the case of the asexual couple that seeks to marry. Though superficially similar to other Platonic couples (who are, by orientation, straight or gay or bisexual, for example) that would opt for a marital relationship, the asexual couple is unique in being categorically excluded from marriage if they are to be true to their sexual orientation.

Potential Arguments for Rejecting Non-Sexual Couples

As I stated earlier, I doubt that Justice Alito was thinking about asexual couples, in part because he did not expressly mention them; he seemed instead to be thinking of Platonic friends who might wish to marry each other. Regardless of what Justice Alito might have had in mind, however, I can think of only two answers to the question “Why not allow Platonic couples to marry?,” and I believe neither one is a satisfactory reason for barring them from marriage.

The first answer is that it would be difficult to tell which Platonic couples are sincerely committed to each other and which are simply trying to take advantage of favorable tax treatment or some other benefit of marriage to which they are not truly entitled. My response to this first answer is that sexually-affiliated couples, both gay and straight (and otherwise), are just as capable as Platonic couples of deciding to marry for opportunistic rather than earnest reasons, and we generally do not monitor the reasoning of couples seeking to marry, at least not those that fit the conventional man/woman mold. This is particularly plain when we consider that a large proportion of all marriages end in divorce, an indication perhaps that whatever reasons the couple might have had for marrying in the first place were not as true or compelling as they might have appeared at the time.

A second potential answer to the question “Why not allow Platonic couples to marry?” is that we believe, perhaps, that a sexual bond offers a special kind of intensity that one is unlikely to find among non-sexually-affiliated couples. For example, you might have an extremely close friend whom you love dearly, but if you found a job to which you wanted to move in a city far away from your close friend, you would likely take that job notwithstanding the distance it would place between you and your close friend, while you might not do the same if it meant moving away from your spouse.

My response to this second answer is that many married couples with two high-powered careers do in fact live in commuting relationships and therefore are willing to move away from a spouse rather than turn down the opportunity to move to a job that one of them perceives as better in some way than an existing job. And at the same time, I suspect that there are close friends who are so committed to each other that they would sooner go on unemployment insurance than pick up and move away from each other for the sake of a job. I know for a fact that my identical-twin cousins would never move away from each other (and in fact have never done so, to my knowledge, even when one of them was married to a man). Though a sexual affiliation is doubtless an intense thing, it is neither necessary to an extremely strong and loyal bond (of the sort that a married couple might have) nor is it sufficient for such a bond (as casual sex in dating attests).

It does not appear that recognizing Platonic marriages would do any harm, and it could in fact extend recognition to relationships that currently operate “under the radar” because people do not take them sufficiently seriously. Such relationships, moreover, could probably better support the “inevitable dependencies” of children, the elderly, and the disabled, with the State’s imprimatur than without it. Perhaps one day, the notion that two individuals who wish to marry each other must necessarily be romantically intimate will come to seem as prejudiced, outdated, and arbitrary as the notion of excluding same-sex couples from the institution of marriage has come (quite rightly) to seem to most of us today.