After slogging through the Ninth Circuit’s lengthy opinion overturning Proposition 8, I must confess that I’m confused. Does the definition of marriage matter? Or does it not? To the court the answer seemed to depend on whether the argument for marital significance helps or harms the case for gay marriage. When discussing the power of marriage to provide dignity and meaning to relationships, the court waxes eloquent (see pages 38 and 39 for an extended paragraph about the significance of the word “marriage” to communicate meaning and purpose in relationships). Yet when the time comes to evaluate the justifications for reserving “marriage” to opposite-sex couples, the word suddenly means virtually nothing, with domestic-partner statutes draining the word of any real-world effect. Marriage can provide a liberty interest (because it’s important!) but not a state interest (because it’s meaningless!).
We’re left with an odd conclusion: Marriage matters a great deal, but it has no effect on child-rearing decisions. Marriage is significant, but changing its definition won’t impact religious liberty.
The bottom line is the word “marriage” matters, as a matter of law, tradition, and definition. The fight over gay marriage is so contentious precisely because marriage has such a profound impact not just on the individual lives of those who choose to marry but also on our cultural and national destiny. And of course the fight over marriage is not confined to gay marriage but also extends to the much longer-running and ultimately far more consequential conflict triggered by our nation’s pre-existing move to no-fault divorce — a move that set the stage for gay marriage by essentially redefining marriage as a union existing for the fulfillment and enjoyment of adults.
Stay tuned. The Ninth Circuit has had its say. Will the Supreme Court weigh in next?