...Going over the opinion, I appreciate the majorityÂ’s recognition that marriage is more than a right. It also involves the granting of state privileges while imposing certain responsibilities on the partners in the union. But the court overstepped its bounds in redefining (for purposes of state law) an institution which has long been limited to monogamous relationships between individuals of different genders. In a democracy, the people and their elected representatives should make decisions of this magnitude.
It’s not just the court’s bypassing the people’s will that troubles me, it’s also some things the court said about marriage. The court refuses to rely upon the “historical” understanding of marriage, noting that “prohibitions on interracial marriage” are also part of the historical record. What it neglects to mention is that those laws were statutory creations, while the historical understanding of marriage as a union between one man and one woman goes back for millennia.
The court sees marriage as “a substantive right of two adults who share a loving relationship to join together to establish an officially recognized family of their own.” But marriage has long been more than just a loving relationship. Such a definition would suggest that two friends — or even siblings — could marry.
The court goes on to make much of the notion of dignity:
One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of “marriage” exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect.
Unless I missed it, the court did not cite the constitutional provision according such dignity.
Recognizing marriage has not — at least not until recently — been about according dignity to any couple in any loving relationship. It has long been a social institution joining together two individuals of different genders in a monogamous bond to promote a stable environment for the raising of children. Indeed, as I pointed out in a recent post, in all cultures (up until the present day) that recognize marriage, sexual difference has been “the defining aspect of the institution.” To be sure, some cultures allowed for same-sex marriages, but, in those cases, one of the partners had to live in the guise of the opposite sex in societies far more sexually stratified than our own.
All that said, I do believe marriage can evolve to include same-sex unions. Indeed, that evolution is already taking place. As gay and lesbian couples meet the obligations traditionally assigned to marriage and live together in monogamous relationships that are more than just loving, then we will find these unions treated as marriage.
But this evolution should happen naturally and not be imposed by a court. Advocates need to defend the merits of the institution rather than focus on the rights they believe are their due. Unless these advocates make their case to the people, they will find the people blocking the evolution of marriage beyond its traditional definition.
...
