Having begun to read the decision of the California State Supreme Court denying the right of the people of California to define marriage as it has traditionally been defined, and holding that homosexuals have the "right to marry," I am finding a few interesting things.
The first is the question of what to call the ruling. Most commentaries I have seen, describe it as “guaranteeing the right of homosexuals to marry,” or something like that. But why is that more correct than to cast it as a denial of the right of the people to make certain kinds of laws? Similarly, one news radio station said that those who disagree with the decision want to (I paraphrase from memory), "put a law in the constitution that denies gays the right to marry." Could they not have said that they supporters of the amendment "want to overturn the ruiling, by puttin language in the constitution saying that the Court had misinterpreted the relevant part of the state constitution"?
Moreover, some of the exact wording of the ruling raises further questions. Consider the following:
The constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.
That language is suggestive. Taken literally, it means that the people of California may not do away with marriage altogether. After all, what does a “right to marry” imply, if not that there must be marriage. I suspect that the Court would, in fact, allow the people of California to do away with marriage altogether if they choose. If that is the case, however, in what sense is marriage a right? Why did not Court not say what it meant?
If, on the other hand, we believe that the Court said exactly what it meant, it raises interesting questions. If there is a right to marry, it means that there are limits to what “marriage” might be. After all, it would be absurd to say that the government must do something, and then declare that the definition of that “right” means whatever people wanted it to mean. Using the sound “horse” to describe a pig does not change the reality of the thing. So too must it be with rights if they are not to become arbitrary.
But how does the Court define marriage? And why does it do so? The Court’s definition (or at least the opinion of the majority) seems to be “most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family.” What is the basis for that definition? Why does the Court hold that there must be official recognition and protection of families at all? Can one answer such questions without believing that certain institutions are natural among men?
In the eighteenth century, many Enlightened thinkers, men like Franklin, Jefferson, Voltaire, and others, believed that it was wise to accept whatever all religions accepted as true, or at least necessary in human life, and to doubt the rest. If one applies a similar principle to marriage, one would find that it has been, always and everywhere, an institution or perhaps status, that varies a great deal, but always has featured both men and women. A more classic, teleological understanding of nature would yield a similar conclusion, though by a somewhat different path.
A supporter of the Court’s position might reply that if people are inclined to members of their own sex, it is unfair to exclude them from marriages with people they want to be with. To make that argument, however, is to make an argument based upon a different understanding of nature–it is nature reduced to biological urges. Upon that basis, however, there cannot be a right to marry. There can only be a right to marry if an institution like marriage is, in fact, natural among men. But can gay marriage be natural in that sense of the term?