Melissa Murray

Obergefell v. Hodges and Nonmarriage Inequality

On June 26, 2015, the Supreme Court announced its much-anticipated decision in Obergefell v. Hodges, opening the door to nationwide recognition of marriage rights for same-sex couples. The public response to the Court’s decision was immediate and overwhelmingly positive. There is certainly much to celebrate about the Obergefell decision, but there is also cause for serious concern — even alarm. Although the Obergefell decision is a victory for same-sex couples that wish to marry, it is likely to have negative repercussions for those — gay or straight — who, by choice or by circumstance, live their lives outside of marriage. Obergefell builds the case for equal access to marriage on the premise that marriage is the most profound, dignified, and fundamental institution that individuals may enter. By comparison, alternatives to marriage, which I collectively term “nonmarriage,” are less profound, less dignified, and less valuable. On this account, the rationale for marriage equality rests — perhaps ironically — on the fundamental inequality of other relationships and kinship forms.

Equal Rites and Equal Rights

On May 15, 2008, the California Supreme Court handed down its much-anticipated decision in In re Marriage Cases. In the weeks and months that have followed this historic announcement, most commentators have focused on the decisions role in extending marriage rights to same-sex couples, and on the denomination of gays and lesbians as a suspect class, entitled to the most rigorous constitutional review. In this Remark, I argue that the importance of In re Marriage Cases goes beyond these two significant accomplishments. Although the decision has been lauded as introducing same-sex marriage to California, it also permits the state, in the name of family equality, to eliminate the marriage label in favor of another status that would apply equally to same-sex and opposite-sex couples. In so doing, the decision provides a means of circumventing a pending ballot initiative in California, which would undermine the decisions force by amending the California Constitution to preclude same-sex marriage. Moreover, in making clear the constitutional commitment to family equality the Courts decision invites us to confront important questions about marriages role in securing equal rights and the states role in ensuring equality in intimate life.

Something Old, Something New: Reflections on the Sex Bureaucracy

This essay responds to “The Sex Bureaucracy,” in which Jacob Gersen and Jeannie Suk identify a “bureaucratic turn in sex regulation” — one that has expanded the reach of sexual regulation to include “nonviolent, non-harassing, voluntary sexual conduct” (or in their words, “ordinary sex”). In their view, the Department of Education’s campaign against sexual assault on college campuses epitomizes this bureaucratic shift. While applauding the authors’ attention to the intersection of sexuality and governance, we challenge their account of the “bureaucratic turn” as an unprecedented event. Drawing on examples from across U.S. history, we show how administrative agencies and unelected bureaucrats have persistently and robustly regulated sex and sexuality, including “ordinary sex.” Building on this more historical and nuanced portrait of America’s “sex bureaucracy,” we then identify what is truly new and striking about the slice that Gersen and Suk explore. In the Department of Education’s regulation of sex, we see clearly how consent — and specifically, affirmative consent — has replaced marriage as the boundary marker between licit and illicit sexual conduct. At a time when marriage no longer holds force as the distinguishing feature of lawful sex and sexuality, enthusiastic, unambivalent expressions of consent provide the state with documentable signals of appropriate sex and sexuality, while also, we speculate, reinforcing an ascendant neoliberal logic of citizenship and governance. In short, the “sex bureaucracy” is old, but innovative, and very much deserving of our scrutiny.