Sexing Skinner: History and the Politics of the Right to Marry

The meaning and scope of the constitutional right to marry are notoriously contested, as are the politics of advocating for an expansive right to marry. As a new way into these well-trodden debates, this Essay revisits the history of Skinner v. Oklahoma, the 1942 Supreme Court opinion that, in the context of striking down a state eugenics law, constitutes the clearest initial articulation of a constitutional right to marry. It argues that Skinner emerged from a set of on-going public conversations about the relationship among marriage, procreation, and sexual freedom. Read in this context, Skinner not only struck a progressive blow against eugenics laws, but also bolstered a more conservative set of links among marriage, sex, and procreation. This Essay suggests that Skinner’s view of the right to marry reflects a historical moment when marriage was the sole site of licit sexual behavior—a regime of “marriage exclusivity.” By contrast, our current constitutional regime is one of “intimate pluralism,” in which nonmarital relationships are likewise entitled to constitutional protections. Ultimately, as cases about the rights of same-sex couples percolate through the courts, these models offer courts alternative routes to defining the scope of the contemporary right to marry, and the meaning of that right might vary depending on which model courts adopt.