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February 6, 2004


Having reread the Goodridge decision last night, I see that I overstated the court's reasoning in the comments to this post, but only to the extent that I suggested that it was explicit rather than implicit. The difference, here, is instructive toward understanding the magnitude of what the court has done.

An argument based on definition is inherently circular to some degree. Obviously, if the definition of marriage is "the union of a man and a woman," arguing that it fixes discrimination against homosexuals to change the definition assumes that there existed a relevant discrimination. In other words, it presumes that there is some more essentially true definition of marriage than that which Massachusetts law has always considered to be the case. Thus, the "remedy" is to make the legal definition accord with the actual definition, the latter being presumed by the assertion that there is discrimination.

The court has relied heavily on its ability to "refine" common-law so as to redefine a term whose meaning and usage it admits. To illustrate this, create a new word that means, by the relationship that it intends to describe, "the union of a man and a woman" — "mawage" — in contrast to a new word that means "the union of a man and a man or a woman and a woman" — "fratrage." One could go through all of Massachusetts's law and legal precedent, therefore, and replace "marriage" with "mawage" without changing the meaning one bit. Inasmuch as nobody would prevent a gay man from marrying a lesbian, homosexuals are not barred from entering into mawage. Similarly, neither homosexuals nor heterosexuals have a right to receive recognition nor benefits for entering into fratrage.

Furthermore, every bit of law that the court cited either to affirm its decision or to dismiss the arguments of the state, contains within it the understanding, tacit or otherwise, that marriage was still mawage. Previous decisions, made in the knowledge that they were exceptions, bounded by the definition of mawage, are now cited to illustrate "intent" that marriage not be definingly procreative (for example).

Keeping with that example, it is plain that the procreative nature of marriage was protected and regulated for by the very definition of the people involved. For a variety of reasons, many of which should be obvious, it was deemed best that this regulation be "soft" and, in related fashion, that exceptions were neutral toward the social understanding of marriage and even furthered some of those aims. The court argued that Massachusetts's laws "do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family." But the point is that marriage — mawage — was the way in which that intercourse was privileged.

Ignoring the degree to which precedent was determined by its larger context, the court simply dismisses such arguments as those involving stability and optimal parentage and asserts its belief that same-sex marriage does not threaten the larger institution. Being a little flip, admittedly, one could suggest that previous courts' determination that such things as grandparent visitation rights would not threaten marriage has been transformed into self-evident precedent that gay marriage will not do so.

In short, the court has determined that there is, in fact, no difference — not only legally, but socially — between mawage and fratrage. And the only way that this can be true is if there is no difference between men and women. These are determinations that a society can make, of course, even if it is wrong to do so. However, if such judgments are not the purpose for and do not indicate the importance of representative democracy rather than judicial oligarchy, I don't know what could possibly be or do so.

Posted by Justin Katz at February 6, 2004 11:17 AM
Marriage & Family

Thank you, Justin. You've hit exactly what bothers me most--the blithe redefinition of an historically freighted word. The possibilities are endless!! Why am I not cheered?

Posted by: Alene at February 6, 2004 8:59 PM

Your post is apt in describing how marriage has been replaced by the template for SSM under the cover of "redefinition" of a word. In this way, the Goodridge decision will deny marriage to all citizens of Massachussetts.

On what basis is marriaged denied to marriagable couples? For the sake of unmarragiable couples, of course. How the substitute will withstand claims that,for example, it discriminates without justification the "marriage" of closely-related couples, for example, is a mystery yet to be revealed. But no doubt we are to trust in the new thing that has replaced marriage.

Posted by: Chairm at February 5, 2005 7:59 AM