The Supreme Court’s recent 5–4 decision in Obergefell v. Hodges legalizing same-sex marriage across the United States has already spawned speculation about “what will be next” in expanding marital rights. As the Supreme Court noted, “[t]he history of marriage is one of both continuity and change. That institution … has evolved over time.” Interracial marriage, equality between husband and wife, and same-sex marriage were all excluded for long periods of time under our Constitution but now have been sanctioned and protected by the courts. While these changes have come slowly, and courts are unlikely to take the next step in expanding marital rights for some time, the courts are probably not finished expanding the legal definition of marital rights.
A New York Times op-ed published shortly after the Supreme Court’s same-sex decision said that the court’s logic could eventually lead to recognition of polygamy or plural marriages, an argument also made by Chief Justice John Roberts in his dissenting opinion. This slippery-slope argument has also been used to contend that the court’s decision will open the door to legal recognition of bestiality or incest.
Robot-human marriages might be next on the list. Probably not soon, admittedly, but it nevertheless will be an inevitable part of our future. Indeed, some critics of same-sex marriage, including some conservative Christian opponents of gay marriage, have argued that the court’s recognition of same-sex marriage would inevitably lead to robotic-human marriages. There has recently been a burst of cogent accounts of human-robot sex and love in popular culture: Her and Ex Machina, the AMC drama series Humans, and the novel Love in the Age of Mechanical Reproduction. These fictional accounts of human-robot romantic relationships follow David Levy’s compelling, even if reluctant, argument for the inevitability of human-robot love and sex in his 2007 work Love and Sex With Robots. If you don’t think human-robot sex and love will be a growing reality of the future, read Levy’s book, and you will be convinced.
Or just look at the marketplace. Sex “dolls” have become more and more realistic in appearance and touch, and one company recently announced that it was developing a sexbot with artificial intelligence that can talk back and express emotions. As Levy points out, the first to explore and benefit from robot-human sexual relationships may be individuals with physical or psychological impairments that limit their ability to have sex with other people.
The era of love and sex with robots has begun and will continue to accelerate going forward, even if it remains a minority choice for the next couple of decades. But with sex and love will come calls for the right to marry. Indeed, there are already examples of people (OK, men) who want or claim to be married to their robot (see here and here).
Will the recent Obergefell decision protecting same-sex marriage apply to open the door to robot-human marriage? The court’s majority decision upholding same-sex marriage was based on an analysis of four “principles and traditions.” These four factors are a mixed bag as applied to robot-human marriage. The first principle is individual autonomy, the right of each of us to decide our own private choices and intimate relationships. The “decision whether and whom to marry is among life’s momentous acts of self-definition.” It is not too far of a stretch to extend this right of individual self-definition to choose to marry a robot—it is not a choice most of us would make (at least at this time), yet if that were someone’s preference, his or her right of personal autonomy would seem to weigh in favor of legal sanctioning of that choice (at least until robots achieve sufficient personhood to have the right to refuse consent). So that’s one point for human-robot marriage.
The second factor relied on by the court is the special relationship that marriages facilitates between “two persons.” The right to marriage “dignifies couples,” reinforces “bilateral loyalty,” and represents an “association for … [a] noble …purpose.” This reference to the coupling of two “persons” would seem to exclude robot-human marriage, at least until some point far in the future when robots might achieve the status of “person.” The rationale for this factor, according to the court, is to provide human companionship: “Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.” But many people are lonely today, and robots may increasingly fill that need for companionship for more and more people going forward. So whether this second factor weighs for or against validating robot-human marriage is ambiguous.
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Gary Marchant is Lincoln professor of emerging technologies, law, and ethics and faculty director of the Center for Law, Science, and Innovation at ASU.