What is marriage?

I have read with great interest yesterday’s California Supreme Court decision In Re Marriage Cases to which Rob Vischer called our attention. I have also reread Goodridge v. Department of Public Health, the late 2003 decision of the Massachusetts Supreme Judicial Court that legalized same sex marriage. I think that both of these decisions have provided the legal foundation for not only same-sex couples to enter civil marriage but any group of people—regardless of age and regardless of degrees of consanguinity—to do the same under the equal protection of the laws.

In disclosure of my own views that are pertinent to this posting, I contend that the majority opinions in both of these state supreme court decisions from Massachusetts and California are wrong. Moreover, I think polygamy is wrong. I consider that marriage is the union of one man and one woman. Lastly, I see that these two state supreme court decisions have the potential to alter marriage so that it is whatever individuals and groups of individuals want it to be rather than what the law—as defined by competent authority—says it is.

When one studies the legal justifications relied upon by the Massachusetts and California courts that supply their bases for same-sex couples to be married and receive the same benefits conferred or mandated by the state for heterosexual couples who are married, several ideas emerge, which are critical to the core arguments of these judicial opinions: liberty; autonomy; dignity; and, equality.

In addition, these two state courts’ understandings of liberty and autonomy are grounded on the “right” of the individual to rely on the problematic reasoning of Justices O’Connor, Kennedy, and Souter in Casey: “Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education… Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child… Our precedents ‘have respected the private realm of family life which the state cannot enter.’… These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

Prior to the Goodridge decision being handed down, I argued in the Wardle-Strasser-Duncan-Coolidge anthology Marriage and Same-Sex Unions: A Debate, which was published in early 2003, that there was no discrimination, no inequality in the laws that restricted marriage to the union of one man and one woman. These laws applied equally to all persons regardless of their sexual orientation. But now, with Goodridge and In Re Marriage Cases, the meaning of equality has been given a skewed definition. Thus, I think it is now possible to expect that the actions of states which target those in committed polygamist relationships will face challenges based on parallel liberty, dignity, autonomy, and equality arguments. These arguments will be founded on the interesting but flawed judicial interpretations of the Goodridge and In Re Marriage Cases majority opinions. Moreover, I think that those states which have recently targeted polygamists with the compulsion of their regulatory authority can expect legal challenges to their actions which contravene the liberty, dignity, autonomy, and equality of polygamists.

These challenges will be the fruits of Goodridge and In Re Marriage Cases that likely were not intended but will follow if the concepts of liberty, dignity, autonomy, and equality defined by these decisions and granted to some persons are to be granted to all. It will be interesting to see what others think about these matters.      RJA sj