The ongoing struggle for marriage expansionism has reached a pivotal juncture. The litigation surrounding California’s Proposition 8 has the potential to decide, as a matter of constitutional law, whether states possess the authority to define marriage as the union between a man and a woman.
Unfortunately, many have misconstrued Proposition 8 as an outright “ban on ‘gay marriage.’” In fact, Proposition 8 does no such thing. Rather, as the 9th Circuit Court of Appeals acknowledges in its majority opinion, “Proposition 8’s only effect was to take away (from same sex couples) that important and legally significant designation (of ‘marriage’), while leaving in place all of its incidents.” Thus, same sex couples in California can, regardless of Proposition 8, enjoy all the legal benefits (all the “incidents” if you will) of marriage as provided under California law.
Understanding the actual effect of Proposition 8 is important because it brings into focus the fundamental question underlying the entire debate; namely, what is “marriage”? Is “marriage” just a word – its definition subject to the arbitrary whim of any given generation’s voguish fancy – or does it possess a definite meaning, derived from observable consequences borne out by our participation in an independent and objective reality? Even so, can the “state of marriage” exist independently of its title?
It’s easy to critique this line of questioning as inherently unproductive. Indeed, why delve into normative issues when deciding what is, in the strictest sense, a legal question? But a cruel irony accompanies any presupposition that the litigation over Proposition 8 is strictly legal. This is especially true in light of the fact that marriage expansionists seek the title “marriage” for the word’s normative power of legitimization. It’s not enough that same sex partners in California can enjoy all the legal “incidents” of marriage; they must be afforded the title as well.
For some, “gay marriage” doesn’t exist without the title “marriage”, even if the relationship is, legally speaking, recognized and state sanctioned to the fullest extent. Somehow there is something extra, something special about the word “marriage” that goes beyond the legality of its benefits, and it is something that same sex couples are compelled to possess.
Even the 9th Circuit speaks of “that important and legally significant designation”, as if the word “marriage” alone somehow possesses something beyond the legal powers, rights, and opportunities afforded by its “incidents”. But what, legally speaking, does that entail? What legal power does the word “marriage” possess unto itself so as to implicate the 14th Amendment’s Equal Protection Clause when states define it a certain way? So far, no one has been able to say with any legal specificity. It just does!
What is apparent, however, is that marriage expansionists are endeavoring to use a non-normative means to acquire for themselves the normative, legitimizing force of “marriage” without having to accept the totality of its normative meaning (which includes the definitional element of: “a union between one man and one woman”).