Saturday, December 07, 2013

The name of the thing: what is marriage?

The media and various judicial departments are full of the controversy as to whether marriage laws deny some classes of people (plaintiffs are generally gay or lesbian or both, and attached to partners of the same sex) the "equal protection of the laws." A number of courts, including the Supreme Court of Massachusetts and the federal district court for the Northern District of California have ruled that they do. Other courts have ruled otherwise, or have yet to make a definitive ruling one way or the other.

The opinions of various courts that have mandated a revision of previous marriage statutes all have a common flaw: they either have failed to define what marriage IS, or have arrived at a definition at the conclusion of their deliberations, rather than defining their terms a priori considering the question. In the seminal case, Hillary Goodridge vs. Department of Public Healthin the Supreme Judicial Court of Massachusetts, Chief Justice Marshall began his majority opinion, "Marriage is a vital social institution." OK. That's a descriptive, and sets a value, but does not define the content of this vital social institution, only that it is vital and social.

That marriage had a legal definition was readily acknowledged by Justice Marshall: "The everyday meaning of "marriage" is "[t]he legal union of a man and woman as husband and wife," Black's Law Dictionary 986 (7th ed. 1999), and the plaintiffs do not argue that the term "marriage" has ever had a different meaning under Massachusetts law."

In conclusion, Marshall wrote "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others," which is a way of saying, we have no idea what it really consists of or what purpose it serves, but it just is. Implicitly, the court defined marriage as a desirable bundle of benefits which nobody should be deprived of. But it failed to define the term BEFORE analyzing the question before it.

Marshall stated the question before the court as, "whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry." How can anyone consider that question without knowing what marriage consists of? Failing to do so, it had not even been established that the marriage laws of the Commonwealth DID deny the protections, benefits and obligations conferred by civil marriage to anyone at all.

The court's decision explicitly overturned the existing statutory definition, on the grounds that the definition deprived a class of persons of the equal protection of the laws. But if so, what then IS a marriage? Having thrown out one definition, the court was able to provide only the most tenuous substitute. Under the court's new definition, clearly marriage has absolutely nothing to do with sex, which raises the question, what does sexual orientation have to do with it either? And why have any marriage laws at all?

The simple historical fact is, every variety of marriage ever instituted in any human society came into being because the human species is divided into two sexes, men and women, and the volatile relationship between these two sexes needed some definition and regulation to sustain any functional community or social context.

With that commonality, different societies have instituted polygamy, polyandry, polygyny, marriage of one man and one woman for life, monomgamous marriage in which one or both partners are expected to have informal lisasons on the side, arranged marriages, giving of daughters to the suitor who offers the parents the highest bride price, marriage limited by clan affiliation, sacred marriage, marriage by free choice of the individuals concerned... but all these variations concern the union of male and female.

Some societies have openly accepted homosexuality in various contexts, temporary or long-term, by people also married to a husband or wife, or distinct from marriage, and others have discouraged or punished it. Some societies have hung property relations and diplomatic relations unto marriage, others have not. But all marriage has been a response to the distinction between men and women, which pre-dates any human constitution or form of government, and the volatile complementarity between the two.

Unfortunately, this fundamental point was never argued in the the Goodridge case. Instead the state of Massachusetts offered "three legislative rationales for prohibiting same-sex couples from marrying: (1) providing a "favorable setting for procreation"; (2) ensuring the optimal setting for child rearing, which the department defines as "a two-parent family with one parent of each sex"; and (3) preserving scarce State and private financial resources." Those were weak arguments, and entirely unnecessary.

When the New York Court of Appeals turned down the argument that the state had a constitutional obligation to license same-sex couples as marriage, Chief Judge Judith Kaye dissented, citing as persuasive authority the assertion in Halpern v. Attorney Gen. of Canada "‘an argument that marriage is heterosexual because it ‘just is’ amounts to circular reasoning." True, no legal term can assume any definition because "it just is." What Kaye, and the Canadian court she referenced, both failed to do, was to define what, then, marriage IS.

It can no more be "whatever I find convenient at the moment" than it can be "whatever it always has been." And a consistent definition that has substance and integrity must PRECEDE any rational legal analysis. The definition cannot be "something broad enough to include gay men and lesbians" just because a judge desires to include them.

When the challenge to Proposition 8 in California was heard by federal judge Vaughn Walker, unlike the court in Massachusetts, Walker scarcely bothered to consider defining the most essential term at issue. Trial testimony and argument, and Walker's analysis, turned primarily on whether California has an "interest" in "differentiating between same-sex and opposite-sex unions." But whether state law had even done so cannot be weighed with integrity, without first establishing what is a marriage. The definition of a term cannot flow implicitly from a conclusion when the term itself was left amorphous for purpose of argument.

A great deal of Walker's opinion is devoted to weighing the credibility of various witnesses about the sociological benefits or harms of licensing or not licensing same-sex couples as a marriage. None of that is particularly relevant to the question, has anyone been denied the equal protection of the laws in violation of the Fourteenth Amendment?

Among other things, Walker ruled that "A PRIVATE MORAL VIEW THAT SAME-SEX COUPLES ARE INFERIOR TO OPPOSITE-SEX COUPLES IS NOT A PROPER BASIS FOR LEGISLATION." Of course it isn't - and a weakness in the ad hoc arguments by the ad hoc assemblage defending Prop 8 was reliance on arguments that did so. But that doesn't ipso facto mean that any marriage law is founded on such a private moral view. One cannot say it does, without defining what marriage is.

What a federal judge of unbiased integrity in Walker's position would have done, is refer back to all parties for additional briefing, "What is marriage, how is it defined, what authority sustains the definition you argue for, and with reference to that definition, how does your desired outcome retain any merit?"

New York state has a marriage law which suffers none of the deficiencies of judicial rulings in Massachusetts, California, and elsewhere. In New York, the legislature, not the courts, amended the statute, and thereby amended the civil definition of marriage. In essence, the people of New York decided, we will recognize the specific quasi-sexual human relationships that unite two men or two women as a couple, extending licensing these relationships, and giving them the name of marriage.

There is no constitutional reason the people of a state cannot do that. Quite properly, New York did not establish a test that only men, or women, qualified as homosexual may enter into a same-sex relationship. The law does not discriminate. Clerks issuing licenses do not inquire "are you gay or straight?" just as clerks never have inquired or a man and a woman applying for a marriage license "are either of you gay?"

Relationships are not entitled to the equal protection of the laws. If they were, business owners would sue for the tax exemption of non-profits, while non-profit organizations would sue for the right to engage in commerce (without losing their tax exemptions). Individual persons are entitled to the equal protection of the laws.

So long as any individual man, and any individual woman, are able to enter into marriage, the Fourteenth Amendment is satisfied. The fact that some men, and some women, prefer to be celibate, to enter holy orders, to enter into one or another kind of same-sex relationship, prefer to engage in group sex with a variety of partners, prefer to support themselves by prostitution, is entirely irrelevant. None of the above are entitled to a marriage license, unless they enter into what the law defines as a marriage.

Racial restrictions were thrown out because race is of no relevance to marriage. Sex is, however, very much of the essence in marriage. Sex is not of the essence to whether an individual can write a legal brief, design a highway bridge, or change a diaper. Race is no predictor of whether any given individual can earn a Ph.D. There is no reason that the people of a state may not write laws concerning same-sex couples, but equal protection of the laws is not offended if the people of a state don't think these particular relationships are worth writing laws about.

The following is a response to a comment by IllyrianFields:

Illyrian, you have a charming tendency to blur distinctions and meaning. No doubt you are sincere in your confusion. There is no good reason I know of that We The People, through the discretionary legislative power entrusted to our elected representatives, should not vote to license same sex couples, whether two men or two women, and confer upon these bonds the name of "marriage." That would be an argument about sound public policy.

Appealing to the courts is quite a different matter. Confused liberals, conservatives and others, infused with an excess of self-righteous zeal and a deficit of rational reasoning, have created the delusion that if the legislature doesn't give you what you want, you run sobbing to the judiciary, and they, like Santa Claus or the Good Fairy, will grant you your heart's desire.

Courts have jurisdiction over state laws primarily when the state has exceeded the boundaries of its jurisdiction, not when the state has made "the wrong decision."

Marriage means something in our society? WHAT does it mean? You beg the question, the very question I wrote about. No law says that "queers can't marry." No county clerk ever asked a man and a woman applying for a marriage license, "Is either of you homosexual? I can't give a marriage license to homosexuals." There is no discriminatory language in any marriage laws.

Marriage was not created in the abstract by legislatures, kings, tribal councils, or any other governing body. There is a biologically objective relation between men and women, and a biologically complementary relation. Observing this, and looking at how this volatile bond might affect the social cohesion of a community, marriage laws were constructed to regulate it. Nobody "discriminated against" a class of people called "homosexuals." Nobody conceived that there was such a class of people.

Homosexual acts were things some people did, not a definition of what anyone was. Married men might, or might not, indulge when away from their wives, particularly on long military campaigns. (Achilles and Patroclus come to mind.) Women, more or less the same. They law might, or might no, proscribe such acts, but the acts did not characterize a person.

Nobody is being told they are second class citizens. At most, some people are being told that your emotional bond is of insufficient interest to the general community to legislate about it.

A world in which gay marriage was the norm would very quickly lead to extinction, so it's a rather poor hypothetical to offer. There is no legitimate question that heterosexuality is the norm for all mammalian species, including humans. I don't think people who find themselves to be "gay" are indulging in sin, I think they have a modest misfiring of certain genes and biochemical responses, and by all means, we should be compassionate about allowing them to make the best of the cards they were dealt. But without the development of two complementary sexes, we would have no sexual emotions at all, and homosexuality would not exist either. Its a secondary offshoot, an evolutionary blind alley, significant only to the affections of the individuals concerned.

I'm not arguing for "the way its always been." I'm simply saying, there is an objective biological basis for the marriage laws that have existed up to 2003, and there is nothing about them that denies any individual PERSON the equal protection of the laws. The fact that some persons don't wish to avail themselves of marriage, and do wish to pursue something not currently regulated, licensed, or taxed, does not show any invidious discrimination whatsoever.

I can never conceive a baby in my own abdomen, or give birth to a child of my own body. That's because I'm male, and males lack the capacity. I am not a victim of discrimination based on sex -- not by the law. When laws were passed to allow pregnancy leave for women, some men complained that this was discrimination on the basis of sex. OK, I suggested, amend the law to provide that any man or woman who becomes pregnant is equally entitled to pregnancy leave.

To many people--a majority of Americans, it seems--sex is of as little consequence as race when it comes to marriage. I'm straight. I define marriage as "a union of two people who love each other."

With your opinion, and $8, you can buy yourself a fancy cup of coffee at Starbucks. Your opinion counts for one vote in the electoral arena, and nothing as to the constitutional boundaries of state power. You can urge your legislator to vote to change marriage laws. I'm not particularly opposed to that, although I wouldn't make it a priority either.

To say that sex is of as little consequence to marriage as race betrays pure ignorance or delusional wishful thinking. Without sex, no marriage laws would exist. If marriage is not about sex, then "gay marriage" would not be an issue, because "gay" is also all about sex. Even a gay person who chooses to remain celibate is defined as "gay," if there is such a designation, by their sexual urges.

I voted against my state's DOMA, partly because there wasn't a snowball's chance in hell that our state Supreme Court was going to find a state constitution mandate that the legislature license gay couples as a marriage, partly because I don't much care if a legislative majority votes to do so. But the petty, childish, emotive demand for licensing same sex couples as a matter of "equal protection of the laws" could have all kinds of unintended consequences, and it is in itself bad legal argument.

For the legislature to license same sex couples and call it marriage does NOT lead inexorably to legalizing incest or bestiality, because it would be a discretionary decision by the legislature. But, for the courts to MANDATE that each different sexual proclivity creates a protected class, could lead quite rapidly to protection for polygamy, incest, bestiality, etc. etc. etc. Be careful what you wish for, you might get it.

And don't be so simperingly magnanimous about being a straight person who wants to be nice to gays. In the civil rights movement, that sort of attitude gave birth to the phrase, "That's mighty white of you." What every person, IRRESPECTIVE of their race, creed, sexual orientation, or any other irrelevant characteristic, is entitled to by our constitution, does not depend on your good will.