*This post first appeared on Mark O’Connell, LCSW’s Psychology Today column, Quite Queerly.
Supreme Court Justice Anthony Kennedy’s deciding opinion on marriage equality last Friday, June 26, 2015, went deeper than law. It reminded us that as human beings we all want the same thing: to be loved and protected, whether we tend to fall in love with women or with men.
Kennedy’s hermeneutic writing was criticized by the dissenters — Justice Antonin Scalia for one described it as “extravagances, of thought and expression.” But the case before the justices required a deviation from standard legalese in order to view the plaintiff, Jim Obergefell and his deceased husband, John Arthur — as well as all same sex couples — as people deserving of “liberty and justice.”
The language of American law — e.g., “Marriage is a commitment between one man and one woman” — is sometimes in need of a hermeneutic update in order to truly do its job: to protect us all. In much the same way it is often necessary to use anomalous language in a variety of disciplines — medicine, psychology, religion — as we live, learn and evolve.
Take it from the great American psychologist, Charles Silverstein. In 1973 he and other activists in his field worked for months demanding that the American Psychiatric Association (APA) delete homosexuality as a mental disorder from the Diagnostic and Statistical Manual. The APA did. In Silverstein’s words “[One day] we were all perverts, but [the next day] we were healthy and normal.” LGBT people would still be considered disordered without brave professionals like Silverstein advocating for unsung human experience using language that deviated from tradition.
In his opinion, Justice Kennedy references the 1973 removal of homosexuality as a psychiatric disorder as an example of necessary evolution. He writes, “[N]ew dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.” In other words, as we continue to live we come to understand ourselves and each other better, we evolve, and we make sure that our institutions and laws evolve with us.
Kennedy acknowledges the evolution of romantic relationships and that the institution of marriage has followed suit. He writes, “The history of marriage is one of both continuity and change. That institution — even as confined to opposite-sex relations — has evolved over time.” He describes the increasing autonomy of women, in relationships and in society overall, and how, “These new insights have strengthened, not weakened, the institution of marriage.”
I pointed out something similar while discussing my book Modern Brides & Modern Grooms on the radio show, Gay News, immediately following the Supreme Court Ruling. To truly practice traditional marriage, one would have to enact a man dragging a woman by the hair and throwing her at the feet of another man. We have come a long way from that version of marriage.
On the flip side, one almost feels bad for Justice Scalia (or, at least for his wife, as my husband says), for holding onto a confining idea of marriage. In his dissenting opinion he writes:
Really? Who ever thought that intimacy and spirituality (whatever that means) were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.