Theory on framework issues

Tuesday, October 27, 2009

7.1 Is “same-sex marriage” coherent?

In re Marriage Cases (2008) 43 Cal.4th 757, Chief Justice George designed a silly argument to claim that limiting marriage to heterosexual couplings violated a fundamental California right: the right to marry. California courts recognized a fundamental right to marry when they invalidated a Jim Crow law against interracial marriage. Held, the fundamental right to marriage can't be abridged. Blacks had been told that they already had the right to marry–other blacks—but limiting whom they could marry restricted the exercise of a fundamental right. (Perez v. Sharp (1948) 32 Cal.2d 711). In Perez, no question existed that the interracial relationship the court sanctioned was properly termed "marriage." A right to x is limited precisely and expressly by x's definition, an impediment to transposing the logic of black marital integrationism to same-sex marriage. If marriage means pair bonding between oppositely gendered persons, one can't derive from a right to "marriage" the marital prerogative for persons identically gendered. Limiting the right to marry by the definition of the term "marry" itself isn't artificial. A legal right to "marry" can only follow the definition of "marry."

The semantics of "marriage" don't determine the civil rights of gays. To argue same-sex marriage based on a right to marriage is absurd: marriage means opposite-sex bondings; to argue against a right to same-sex marriage merely because a "right to marry" cannot justify it is unwarranted. If gays should be allowed to enter into official "marriages" because legal right so requires, the right in question is not the right to "marry." The argument required of Chief Justice George is more complicated than demonstrating "marriage" is a right: he needs to infer a broader right which the right to marry merely expresses. This broader right, not Chief Justice George's tortured justification, is same-sex marriage's vision. To construct this broader right, the gay visionary purifies the ordinary meaning of the term "marriage"—which includes two elements: pair bonding and sexual complementarity—to a pair-bonding core, notwithstanding that by ordinary meaning sexual complementarity is a stronger requirement than pair bonding, polygamy and group marriage forms of "marriage" stretching the terms only slightly. Ordinary language's emphasis on sexual complementarity bespeaks an ordinary-meaning definition of "marriage" centered on bringing up children born of the supporting parents; but gay visionaries celebrate a different virtue, the dyadic bond combining sex, economic responsibility, and affection.

A right for gays to marry each other needn't derive, as a matter of logic, from principles that mention "marriage," but Chief Justice George must maintain that when courts held that people have the right to "marry" they actually meant state recognition for pair-bonding relationships identical to marriage except not featuring sexual complementarity. This concept of the sanctity of marriage-like pair bonding is the same-sex marriage vision. What deserve protection on this view are long-term relationships based in prototype on romantic love, combining sexual and economic commitment. Advocates hold that celebrating and protecting this relationship is what truly justifies upholding marriage as a legal status.

When fleshed out, the same-sex marriage issue, a question of social vision, isn't judicial, and the logical leaps are not merely legal. Psychology hasn't seriously addressed whether the affective core of same-sex pair bonding is identical to that prototypically found in sexually complementary relationships.

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SUPPLIER OF LEGAL THEORIES. Attorneys' ghostwriter of legal briefs and motion papers, serving all U.S. jurisdictions. Former Appellate/Law & Motion Attorney at large Los Angeles law firm; J.D. (University of Denver); American Jurisprudence Award in Contract Law; Ph.D. (Psychology); B.A. (The Johns Hopkins University). E-MAIL: Phone: 760.974.9279 Some other legal-brief writers research thoroughly and analyze penetratingly, but I bring another two merits. The first is succinctness. I spurn the unreadable verbosity and stupefying impertinence of ordinary briefs to perform feats of concision and uphold strict relevance to the issues. The second is high polish, achieved by allotting more time to each project than competitors afford. Succinct style and polished language — manifested in my legal-writing blog, Disputed Issues — reverse the common limitations besetting brief writers: lack of skill for concision and lack of time for perfection.