Bench Memos

“Same-Sex Marriage” and Square Circles

California’s Proposition 8 is routinely said to “ban” “same-sex marriage.” But as Sherif Girgis, Ryan T. Anderson, and Robert P. George—co-authors of What Is Marriage? Man and Woman: A Defense—point out in the course of an outstanding interview with Kathryn Lopez:

[T]here is no ban on same-sex marriage. Unlike bigamy or polygamy, for example, nothing about it is illegal. In all 50 states, two people of the same sex may choose to live together, choose to join a religious community that blesses their relationship, and choose a workplace offering joint benefits.

Proposition 8 defines an inherent element of what marriage has forever been in California. It no more “bans” “same-sex marriage” than a proper definition of a circle bans square circles. Rather, under Proposition 8, the concept of “same-sex marriage,” like that of a square circle, is an oxymoron, a self-contradiction, an absurdity—just as it has always been under California’s marriage statutes and, until very recently, everywhere for as long as marriage has existed.

To understand why marriage exists, read the rest of the interview.

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