The question before the court is best summed up as; “What is the right to marry and who can excersie it?” As the Judge pointed out, while the circumstances included in the right to excercise it have broadened, the definition of marriage as an institution of the State itself has not changed.
Yes, that is what he said. My question is: is it logical? Isn’t it at least logical to ask what the definition used to be, and whether the broadening has changed the definition?
You’re looking at the issue from the wrong perspective. Procreation may be the goal of marriage when viewing it as an institution of religion but that was not the issue brought before the Judge. The Judge was tasked with deciding whether or not procreation is the goal, and/or requirement, of marriage* as an institution of the State* and he, correctly, found that it never has been.
No, I’m looking at it from an historical perspective, which the judge claimed he was. Take a couple items:
It used to be mandatory in many states to have blood tests before issuing marriage certificates. Lack of consummation of marriage used to be a basis for legal annulment. Additionally, divorce used to require fault - and fault would include withholding sex, adultry, etc.
This is one aspect of the traditional legal structures surrounding marriage. They have all been removed, effectively. The rationale for removing them has often revolved around privacy and proof issues, not the definition of marriage.
But if we were to look at those legal requirements, we could find a “purpose” to marriage that revolved around certain attitudes towards sex: that people were not socially permitted to have sex before marriage, that sex was essential to the marriage contract, that fidelity was vital, etc. They’ve all faded.
And the question is: what is left? Is it an institution with any meaning?
The meaning of a marriage is not defined by the State or society at large nor can it be. Only the parites directly involved can give it meaning.
But we are talking about what the court is calling a fundamental civil right. It was a fundamental right in the past because of social acceptance, gender roles, and attitudes towards sex, which were all reflected in the law. Why is a meaningful relationship outside of wedlock less meaningful than one in wedlock? You can’t say something has a completely individual meaning, or no meaning at all to some, and then say it is a fundamental right. I think marriage USED to be a fundamental right, but, particularly as the judge as undefined it, it is no different than a roommate status.
They certainly matter to religion, as it is the proper venue for such views, but what he is saying is that they don’t matter in the context of the State and it is not appropriate or constitutional for the State to dictate such things and/or use them as justification for narrowing the application of civil rights.
But they used to be the province of the state. And if the judge is going to use the changing legal landscape surrounding marriage to support his opinion, he should give a little analysis to why that occurred, and what it means.
Basically, the argument asks the proponents of traditional marriage to define marriage, shoots the efforts down, and demands no definition from the other side. For people who believe in traditional marriage, it makes sense to consider it a fundamental right. For those who are not even going to attempt to define it other than by “what it means to you,” it is laughable as a right.
