There Can be Only One Definition of MarriageBy csw, Section Arguments
Traditional marriage cannot co-exist with same-sex marriage. Genderless marriage has features and implications that differ from traditional marriage.
First, man-woman marriage is an ancient and virtually universal social institution; hence, those enacting or interpreting marriage laws in recent centuries apparently sensed little or no need to articulate the factual basis for the man-woman meaning reinforced by those laws. Even congressional deliberation leading up to the 1996 Defense of Marriage Act8 focused largely on the role of individual states in fashioning their own marriage laws; Congress did not conduct a thorough examination of the man-woman marriage institution or the factual consequences of replacing it with a marriage scheme in which the parties’ genders are legally irrelevant and socially inconsequential. Second, at least until quite recently, the key players in the constitutional debates surrounding marriage (lawyers, judges, and legal scholars) had little specialized knowledge about marriage. Third, those participants thought they had a great deal of general knowledge about marriage. This is understandable because marriage is a ubiquitous
social reality, encountered or experienced by nearly everyone; as a result, most people believe that they understand marriage. As we will see, however, that belief can impede defensible legal work on the marriage issue. . . .
By “the facts of marriage” or “marriage facts,” I mean those facts that almost fifteen years of litigating the marriage issue in sixteen states and the District of Columbia have shown to be relevant to that issue. Thus, the word “facts” is used in a narrow, lawyerly way; it includes those matters disputed in litigation other than legal principles and procedures, a distinction seen in such oft-used phrases as “issue of fact,” “question of law,” and “mixed question of law and fact.” As described by those terms, a fact is not necessarily “[s]omething that has really occurred or is actually the case” but rather what a judge, for purposes of resolving a case, will accept as such—or will accept as something that a reasonable legislator could accept as such. Thus, in the lawyer’s realm, the notion of “alleged fact” or even “false fact” is not unintelligible. References in this Article to the facts of marriage or marriage facts are of that realm. On one side of the marriage issue are those who want marriage to be legally redefined to encompass “the union of any two persons,” with the law treating the parties’ genders as irrelevant to the meaning of marriage—hence, “genderless marriage.” On the other side are those who want to preserve “the union of a man and a woman” as a core meaning of the marriage institution—hence, “man-woman marriage.” I do not use the terms “same-sex marriage,” “homosexual marriage,” or “gay marriage” because they are misleading, in two related ways. First, nowhere in the world is marriage defined legally, socially, or otherwise as the union of two persons of the same sex. It is defined either as the union of any two persons, as in Massachusetts (at least legally), or as the union of a man and a woman, as in the other 49 states (both legally and socially). Second, when people confront the marriage issue, the term “same-sex marriage” and others like it often prompt them to think of a new, different, and separate marriage arrangement or institution that will coexist with the old man-woman marriage institution. But once the judiciary or legislature adopts “the union of any two persons” as the legal definition of civil marriage, that conception becomes the sole definitional basis for the only law-sanctioned marriage that any couple can enter, whether same-sex or man-woman. Therefore, legally sanctioned genderless marriage, rather than peacefully coexisting with the contemporary man-woman marriage institution, actually displaces and replaces it. The opposing sides have repeatedly presented to the courts two quite different “packages” of marriage facts; each judge, in upholding man-woman marriage or mandating its replacement with genderless marriage, has to some degree both premised her ultimate legal conclusion on one package and attempted to counter the contents of the other package. Read Marriage Facts by Monte Stewart at the Marriage Law Foundation
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