Bench Memos

Walker’s Misunderstanding of the Opposite-Sex Character of Marriage

As I’ve outlined, Judge Walker somehow failed to identify the opposite-sex character of marriage as one of the core characteristics of marriage throughout American history.  In their stay motion to the Ninth Circuit, Prop 8 proponents restate some of the record evidence and other authority that they presented to Walker—and that he simply ignored and claimed didn’t exist.  The rest of this post (continuing below the fold) is excerpted from the stay motion.  “DIX” references are to defendants’ trial exhibits.  (I’ve deleted some citations and changed the “all caps” punctuation in others.)

In the words of highly respected anthropologist Claude Levi-Strauss, “the family—based on a union, more or less durable, but socially approved, of two individuals of opposite sexes who establish a household and bear and raise children—appears to be a practically universal phenomenon, present in every type of society.” The View from Afar 40-41 (1985) (Trial Exhibit DIX63); see also G. Robina Quale, A History of Marriage Systems 2 (1988) (DIX79) (“Marriage, as the socially recognized linking of a specific man to a specific woman and her offspring can be found in all societies.”).

The opposite-sex character of marriage has always been understood to be a central and defining feature of this institution, as uniformly reflected in dictionaries throughout the ages. Samuel Johnson, for example, defined marriage as the “act of uniting a man and woman for life.” A Dictionary of the English Language (1755). Subsequent dictionaries have consistently defined marriage in the same way, including the first edition of Noah Webster’s, and prominent dictionaries from the time of the framing and ratification of the Fourteenth Amendment.  [citations omitted]

Nor can this understanding plausibly be dismissed, as the court below did, as nothing more than an “artifact of a time when the genders were seen as having distinct roles in society and in marriage.” Rather, it reflects the undeniable biological reality that opposite-sex unions—and only such unions—can produce children. Marriage, thus, is “a social institution with a biological foundation.” Levi-Strauss, “Introduction,” in Andre Burguiere, et al. (eds.), 1 A History of the Family: Distant Worlds, Ancient Worlds 5 (1996). Indeed, an overriding purpose of marriage in every society is, and has always been, to approve and regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society. In particular, through the institution of marriage, societies have sought to increase the likelihood that children will be born and raised in stable and enduring family units by the mothers and fathers who brought them into this world.

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This understanding of the central purposes of marriage is well expressed by William Blackstone, who, speaking of the “great relations in private life,” describes the relationship of “husband and wife” as “founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated.” Blackstone then immediately turns to the relationship of “parent and child,” which he describes as “consequential to that of marriage, being its principal end and design: it is by virtue of this relation that infants are protected, maintained, and educated.” John Locke likewise writes that marriage “is made by a voluntary compact between man and woman,” and then provides essentially the same explanation of its purposes:

For the end of conjunction between male and female, being not barely procreation, but the continuation of the species, this conjunction betwixt male and female ought to last, even after procreation, so long as is necessary to the nourishment and support of the young ones, who are to be sustained by those that got them, till they are able to shift and provide for themselves.

Throughout history, other leading linguists, philosophers, historians, and social scientists have likewise consistently recognized the essential connection between marriage and responsible procreation and childrearing. [citations omitted] In the words of the eminent sociologist Kingsley Davis, “[t]he genius of the family system is that, through it, the society normally holds the biological parents responsible for each other and for their offspring. By identifying children with their parents … the social system powerfully motivates individuals to settle into a sexual union and take care of the ensuing offspring.” The Meaning & Significance of Marriage in Contemporary Society 7-8, in Contemporary Marriage: Comparative Perspectives on a Changing Institution (Kingsley Davis, ed. 1985) (DIX50).

This understanding of marriage and its purposes has also prevailed in California, just as it has everywhere else. Indeed, aside from the California Supreme Court’s swiftly corrected decision in the Marriage Cases, California courts have repeatedly embraced this understanding, expressly recognizing that “the institution of marriage” serves “the public interest” because it “channels biological drives that might otherwise become socially destructive” and “it ensures the care and education of children in a stable environment, ” DeBurgh v. DeBurgh (Cal. 1952); that “the first purpose of matrimony, by the laws of nature and society, is procreation,” Baker v. Baker (1859); and thus that “the sexual, procreative, [and] child-rearing aspects of marriage” go “to the very essence of the marriage relation,” In re Marriage of Ramirez (Cal. Ct. App. 2008).


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