Marriage and the Court: La Cage Aux Fools

It often seems as if clever lawyers become rich, careless lawyers become inmates, and confused lawyers become judges. And one certainly could get this impression when assessing the oral-arguments phase of the Proposition 8 case currently before the Supreme Court. The problem? With some rare exceptions, the arguments heard and questions posed ranged from the confused to the not-so-compelling. And no one really cut to the heart of the matter, which could have happened if a justice had just subjected the plaintiffs (pro-faux marriage/anti-marriage side) to a certain line of questioning, one that would have painted them into a corner. It goes something like this:

Sir, some have pointed out that, just like anyone else, homosexuals should have a right to marry -- and already do. That is, they have a right to enter into a union with a member of the opposite sex, which accords with the definition of marriage. How do you respond to this argument?

At this point, the plaintiffs will have to say, or at least imply, that they don't agree with the above definition or that it's no longer operative. This is when you say, "Okay, but if you're so sure that the time-honored definition of marriage is wrong, you must know what the right one is. What is your definition of marriage?"

The anti-marriage side must now either offer an alternative definition of "marriage" or refuse to do so. If the former, the follow-up then should be:

But wait -- you are now being exclusive and discriminatory, just as you accuse the pro-marriage side of being, as any definition excludes whatever doesn't meet it. In light of this, why should the Court disestablish one "discriminatory" standard and establish another in its place? Since all definitions, all standards, are discriminatory, why not stick with the tried-and-true one? Moreover, why would you think that it is the role of the Court to define marriage in the first place?

It's hard to imagine how the anti-marriage side could refute this argument. Could they credibly say that the increasing visibility, prominence, and acceptance of homosexuals are significant? Even if we view the matter (incorrectly) within the context of rights, the fact is that a group's constitutional rights are not alterable based upon its size or status. And if the claim is a democracy oriented one -- that the definition of marriage is a product of man and that homosexuals, as part of the family of man, have a say in it -- the response is simple: "Democratic determinations are just that: democratic. The Court's job is to interpret the Constitution, not the nation's majority will. For the latter you must go to the people, who express their will on the matter in question through legislatures and referenda."

And what if the anti-marriage side refuses to offer a definition of marriage? Then the Court should say:

Before you can decide if there is a right to a thing, you must first know what that thing is. The matter here is not whether homosexuals have a right to marry, but, rather, what marriage is. It is not a matter of rights; it is a matter of definitions. And if the plaintiffs haven't even bothered to conceive of or present an alternative definition of marriage themselves, why should the Court do so for them -- and for 312 million other Americans?

Having said this, the relevant point here is that since this is a matter of definitions, and since the Constitution offers no definition of marriage, this issue isn't within the purview of the courts. It isn't the Court's place to rule on whether or not a law is a good idea or based on its sociological implications. Thus, Proposition 8, having been duly instituted under California law, must be allowed to stand. If you have a problem with that, the proper recourse is not to the Supreme Court, but to the California court of public opinion.

Of course, the reality is that if the anti-marriage forces did provide an alternative definition of marriage for the Court, it would be the first time they'd done so anywhere in any visible way. This brings us to an important point: as disrespectful to civilization as the attack on marriage is, the anti-marriage forces have not even shown the respect of trying to redefine the institution. Rather, through their actions -- and omissions -- they are doing something else.

Undefining it.

Rendered logically, what they're saying is that homosexuals, being people, have a right to their conception of marriage. But it then follows that all people, being people, have a right to their conception of marriage. And this failure to provide a definition, to draw lines, puts the lie to the claim of the anti-marriage set that their agitation won't lead to the legalization of polygamy, "marriages" to animals (which have already occurred), and any other conception of the institution imaginable. For an undefinition excludes not a thing. It also does facilitate the destruction of marriage, because the closer something gets to meaning anything, the closer it gets to meaning -- and being -- nothing.

To understand this more fully, we can analogize it to freedom of speech. Does anyone say that the First Amendment rights of a child pornographer, or of someone with an affinity for his product, are being violated because the material is outlawed? No, the position of the courts is that "rights" simply don't apply here because child pornography is not defined as protected expression. And the equal-protection clause isn't relevant because the prohibition applies to everyone: while those who like child pornography may not create or imbibe it, neither may those who don't like it. The point is that people have a right to equal protection; conceptions of expression don't. People have rights; preferences do not.

Likewise, the time-honored definition of marriage excludes any homosexual conception (and other conceptions) of it -- not homosexuals. A homosexual may not "marry" a person of the same sex, but neither may a heterosexual. And while homosexuals and others have a right to equal protection under the law, a homosexual conception (or any other conception) of marriage does not.

One big difference between the speech and marriage issues, however, is that we have a constitutional amendment addressing speech but no amendment for marriage. Thus, it will be even harder for the Court to rationalize on the latter than it was on speech (when defining much of adult pornography as enjoying protection). Of course, though, I wouldn't put anything past an institution that would redefine a stated penalty in ObamaCare as a "tax." But maybe this is why we should consider how judicial review is currently defined as status quo and the Court's rulings as the final word -- and how these are two areas wherein redefinition is definitely in order.

Contact Selwyn Duke, follow him on Twitter or log on to SelwynDuke.com

It often seems as if clever lawyers become rich, careless lawyers become inmates, and confused lawyers become judges. And one certainly could get this impression when assessing the oral-arguments phase of the Proposition 8 case currently before the Supreme Court. The problem? With some rare exceptions, the arguments heard and questions posed ranged from the confused to the not-so-compelling. And no one really cut to the heart of the matter, which could have happened if a justice had just subjected the plaintiffs (pro-faux marriage/anti-marriage side) to a certain line of questioning, one that would have painted them into a corner. It goes something like this:

Sir, some have pointed out that, just like anyone else, homosexuals should have a right to marry -- and already do. That is, they have a right to enter into a union with a member of the opposite sex, which accords with the definition of marriage. How do you respond to this argument?

At this point, the plaintiffs will have to say, or at least imply, that they don't agree with the above definition or that it's no longer operative. This is when you say, "Okay, but if you're so sure that the time-honored definition of marriage is wrong, you must know what the right one is. What is your definition of marriage?"

The anti-marriage side must now either offer an alternative definition of "marriage" or refuse to do so. If the former, the follow-up then should be:

But wait -- you are now being exclusive and discriminatory, just as you accuse the pro-marriage side of being, as any definition excludes whatever doesn't meet it. In light of this, why should the Court disestablish one "discriminatory" standard and establish another in its place? Since all definitions, all standards, are discriminatory, why not stick with the tried-and-true one? Moreover, why would you think that it is the role of the Court to define marriage in the first place?

It's hard to imagine how the anti-marriage side could refute this argument. Could they credibly say that the increasing visibility, prominence, and acceptance of homosexuals are significant? Even if we view the matter (incorrectly) within the context of rights, the fact is that a group's constitutional rights are not alterable based upon its size or status. And if the claim is a democracy oriented one -- that the definition of marriage is a product of man and that homosexuals, as part of the family of man, have a say in it -- the response is simple: "Democratic determinations are just that: democratic. The Court's job is to interpret the Constitution, not the nation's majority will. For the latter you must go to the people, who express their will on the matter in question through legislatures and referenda."

And what if the anti-marriage side refuses to offer a definition of marriage? Then the Court should say:

Before you can decide if there is a right to a thing, you must first know what that thing is. The matter here is not whether homosexuals have a right to marry, but, rather, what marriage is. It is not a matter of rights; it is a matter of definitions. And if the plaintiffs haven't even bothered to conceive of or present an alternative definition of marriage themselves, why should the Court do so for them -- and for 312 million other Americans?

Having said this, the relevant point here is that since this is a matter of definitions, and since the Constitution offers no definition of marriage, this issue isn't within the purview of the courts. It isn't the Court's place to rule on whether or not a law is a good idea or based on its sociological implications. Thus, Proposition 8, having been duly instituted under California law, must be allowed to stand. If you have a problem with that, the proper recourse is not to the Supreme Court, but to the California court of public opinion.

Of course, the reality is that if the anti-marriage forces did provide an alternative definition of marriage for the Court, it would be the first time they'd done so anywhere in any visible way. This brings us to an important point: as disrespectful to civilization as the attack on marriage is, the anti-marriage forces have not even shown the respect of trying to redefine the institution. Rather, through their actions -- and omissions -- they are doing something else.

Undefining it.

Rendered logically, what they're saying is that homosexuals, being people, have a right to their conception of marriage. But it then follows that all people, being people, have a right to their conception of marriage. And this failure to provide a definition, to draw lines, puts the lie to the claim of the anti-marriage set that their agitation won't lead to the legalization of polygamy, "marriages" to animals (which have already occurred), and any other conception of the institution imaginable. For an undefinition excludes not a thing. It also does facilitate the destruction of marriage, because the closer something gets to meaning anything, the closer it gets to meaning -- and being -- nothing.

To understand this more fully, we can analogize it to freedom of speech. Does anyone say that the First Amendment rights of a child pornographer, or of someone with an affinity for his product, are being violated because the material is outlawed? No, the position of the courts is that "rights" simply don't apply here because child pornography is not defined as protected expression. And the equal-protection clause isn't relevant because the prohibition applies to everyone: while those who like child pornography may not create or imbibe it, neither may those who don't like it. The point is that people have a right to equal protection; conceptions of expression don't. People have rights; preferences do not.

Likewise, the time-honored definition of marriage excludes any homosexual conception (and other conceptions) of it -- not homosexuals. A homosexual may not "marry" a person of the same sex, but neither may a heterosexual. And while homosexuals and others have a right to equal protection under the law, a homosexual conception (or any other conception) of marriage does not.

One big difference between the speech and marriage issues, however, is that we have a constitutional amendment addressing speech but no amendment for marriage. Thus, it will be even harder for the Court to rationalize on the latter than it was on speech (when defining much of adult pornography as enjoying protection). Of course, though, I wouldn't put anything past an institution that would redefine a stated penalty in ObamaCare as a "tax." But maybe this is why we should consider how judicial review is currently defined as status quo and the Court's rulings as the final word -- and how these are two areas wherein redefinition is definitely in order.

Contact Selwyn Duke, follow him on Twitter or log on to SelwynDuke.com

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