Some thoughts on how to think about marriage

March 29, 2013

The struggle for marriage equality has been very much in the news this week, with the Supreme Court hearing oral arguments in two major cases, one challenging the constitutionality of California’s Proposition 8, the other that of the section of the Defense of Marriage Act which denies marital status at the federal level to same-sex couples married by the laws of their own state.

Now this is clearly not the Warren or Burger Court, but it doesn’t seem to be the Taney Court either; the course of the arguments (and especially the questions and comments of likely swing vote Justice Kennedy) makes it seem unlikely that we’ll get a sweeping statement either for or against same-sex marriage on its own merits. More likely a narrow decision which will affect as few people as possible, maybe even a dismissal of one or both cases for lack of standing – a real possibility because both President Obama and Governor Brown have declined to defend their respective laws on appeal, leaving rather irregular bodies standing before the Court in their place.

But what I really want to write about here is the complaint that the Court is being asked to “redefine marriage.” Justice Roberts used the expression in his questions; most social conservatives use it. The way I see it, the Court is simply being asked to interpret the Constitution. The Constitution doesn’t define “marriage;” it doesn’t even use the word. Or “marry.” I did a word search; I can’t find “man” or “woman” either, only “person.” What it does mention is “equal protection of the laws.” That is what the Court is being asked to “define.” Now this isn’t necessarily a simple matter. After all, just about every law differentiates between groups of people in one way or another; what makes a differentiation “unequal” and therefore unconstitutional? There’s a whole body of jurisdiction on this, I don’t want to get into the details right now, but if the Court finds that there is no adequate justification for the government to differentiate between same-sex and opposite-sex couples, as I believe there is not, the government will simply  have to stop differentiating. Whether it decides to continue to call this expanded class of relationships “marriage,” or “civil union” (so long as it’s done consistently, not “civil union” for gays only), or take a libertarian position and stop recognizing any particular kind of relationship but just enforce whatever kind of domestic contract people freely enter into, is a different question. If the upshot is that “marriage” is redefined, it’s only because public sentiment opposes the option of dropping the word from the laws altogether.

Aaaargh. I’ve got a whole lot to say about how “religion” fits in, and the role of antibiotics and modern sanitation in the recent changes to sexual morality, and if I try to do it all now I’ll start missing meals and sleep and get cranky. So I’ll let the above stand, post it, and try to get back to the keyboard next week.

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