Sometimes there are interesting though somewhat random cross-references that one comes across. Re-reading Obergefell for class, I was reminded of substance and bundle theories in ontology; I had come across them in Grossmann’s Phenomenology and Existentialism, a discarded book I had picked up outside a colleague’s office years ago and that I had started reading. (I had never taken any philosophy classes, and that’s part of me catching up, I guess.) In a way, Kennedy’s majority opinion views marriage as a bundle of characteristics that can be changed over time by adding or removing some, thereby increasing justice (removing coverture, adding interracial relationships, etc.). Roberts appears to take a substance view — for him, the inter-gender nature of marriage is what makes it marriage, while coverture etc. etc. are just accidental properties that can be taken away, it seems. Kennedy, instead of talking about the essential nature of marriage lists four “principles and traditions” that, he argues, justify that marriage is a fundamental constitutional right — and that are equally applicable to same-sex and opposite-sex relationships.
I hope that people have moved on from the same-sex marriage debate by now and accept that same-sex marriages simply exist. I fear that I am not right. Sigh. In any case, I find the deeper contrast between the two positions — the (debatable) broader characteristics and purposes of marriage vs. the (debatable) narrow essential substance of it — enlightening as to the liberal and conservative ways of thinking here.
