Same-sex marriage is, of course, the topic of the next two days at the Supreme Court. If you haven\u2019t already, you may want to look at some of the briefs in the cases, United States v. Windsor, which focuses on the Defense of Marriage Act (http:\/\/tinyurl.com\/bl2ew8j), and Hollingworth v. Perry, a challenge to California\u2019s Proposition #8 (http:\/\/tinyurl.com\/cwchyol).<\/p>\n
In Windsor, I counted 89 submissions, in Perry 100. I may have missed a few and I was only counting those since the Court said it would hear the cases. I am guessing that you don\u2019t have time to read them all. I would read the main briefs in each case. Keep in mind, though, that because the California A-G refused to support Proposition #8, the main Perry briefs are not from the state but the Alliance Defending Freedom (http:\/\/tinyurl.com\/cnpdof7) and the Center for Constitutional Jurisprudence, this last signed by former US Attorney General Edwin Meese and John C. Eastman (http:\/\/tinyurl.com\/ce78zxs).<\/p>\n
But if you\u2019re like me, as the same-sex marriage cases have progressed through the courts, you\u2019ve found yourself remembering a moment in the movie Adam\u2019s Rib (Tracy and Hepburn, 1949). The main characters \u2014 husband and wife, opposing attorneys in a case involving marriage and murder \u2014 are arguing. Tracy storms at Hepburn: \u201cThe law is the law, whether it\u2019s good or bad. If it\u2019s bad, the thing to do is to change it, not just to bust it wide open\u2026. What is marriage? Tell me, that. It\u2019s a contract; it\u2019s the law.\u201d<\/p>\n
Those lines pretty much sum up both cases. Both arose when people who did not like a law decided to go to court to bust it open. And behind both is the question of the marriage contract.<\/p>\n
For my part, the debate has missed a crucial point. Neither side has addressed what seems to me the basic question when dealing with any law. Is it just? And I do not see how this new law of marriage can possibly be just, initially to homosexual couples, later to heterosexual ones or, more likely, both.<\/p>\n
Tracy\u2019s on-screen point to Hepburn came straight from 18th century English legal commentator William Blackstone, that is, out of English common law at the time of our founding, the basis of marriage law in America even, with all its changes, today. \u201dOur law considers marriage in no other light than as a civil contract,\u201d Blackstone wrote, adding that it was \u201cintended for [the wife’s] protection and benefit.\u201d<\/p>\n
As in Blackstone\u2019s time, besides maintaining what Blackstone called an \u201cintolerably ill temper,\u201d the principal way of breaking the marriage contract remains committing adultery. At the heart of the marriage contract is a pledge of sexual fidelity.<\/p>\n
Now, I know, of course, that marriage is more than a contract. It is a sacrament. It is a physical and spiritual union that, when it takes, transforms and deepens both man and woman. It is the core of family formation and clearly the best framework for bringing children into the world and raising them.\u00a0But I am talking here about law, contracts and whether the marriage contract as it stands can be just to both same-sex and traditional couples. \u00a0Period.<\/p>\n
Now here is my problem.<\/p>\n
If I were unfaithful, the marriage contract would give my wife the right to divorce me and, as they say, sue me for everything I\u2019m worth and take our child, if we had one, with her. She may not choose to exercise that right. But she receives it, which most of us would agree is entirely just \u2014 in the case of a heterosexual couple.<\/p>\n
But how can it be just to give one same-sex partner that kind of power over another because he or she had an affair \u2014 particularly if the affair was with another member of that sex? The risk of producing children, leading to a competing family, is non-existant. The other partner may leave the marriage, but why should he or she receive the same claim on the philanderer\u2019s property or a preference if children are involved?<\/p>\n
You may ask, does that mean that a heterosexual adulterer whose affair produces a child should be treated differently than one whose affair does not?\u00a0We know that the courts \u2014 and wronged wives \u2013 are harsher on one than the other.<\/p>\n
But\u00a0if\u00a0same-sex couples are brought under\u00a0the marriage contract\u00a0and\u00a0<\/b>it is not just\u00a0to them, sooner or later there will be pressure to change the contract,\u00a0either to wipe out the demand of sexual fidelity \u2014 making the contract unjust to heterosexual couples \u2014 or come up with some messy compromise that leaves both kinds of couples worse off.<\/p>\n
Some of the briefs in this week\u2019s cases quote same-sex marriage advocates saying that the new law of marriage they seek will end marriage as we know it, transforming it, as one prominent advocate put it, \u201cinto something new.\u201d<\/p>\n
They may be in for a surprise. And whether or not they are, it is a fair bet that most everyone else will be.<\/p>\n","protected":false},"excerpt":{"rendered":"
Same-sex marriage is, of course, the topic of the next two days at the Supreme Court. If you haven\u2019t already, you may want to look at some of the briefs in the cases, United States v. Windsor, which focuses on the Defense of Marriage Act (http:\/\/tinyurl.com\/bl2ew8j), and Hollingworth v. Perry, a challenge to California\u2019s Proposition […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[116],"tags":[12,135,136,134,65],"class_list":["post-1535","post","type-post","status-publish","format-standard","hentry","category-constitution-and-law","tag-hugh-hewitt","tag-law","tag-marriage","tag-same-sex-marriage","tag-supreme-court"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.clarkjudge.org\/wordpress\/wp-json\/wp\/v2\/posts\/1535","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.clarkjudge.org\/wordpress\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.clarkjudge.org\/wordpress\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.clarkjudge.org\/wordpress\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/www.clarkjudge.org\/wordpress\/wp-json\/wp\/v2\/comments?post=1535"}],"version-history":[{"count":3,"href":"https:\/\/www.clarkjudge.org\/wordpress\/wp-json\/wp\/v2\/posts\/1535\/revisions"}],"predecessor-version":[{"id":1537,"href":"https:\/\/www.clarkjudge.org\/wordpress\/wp-json\/wp\/v2\/posts\/1535\/revisions\/1537"}],"wp:attachment":[{"href":"https:\/\/www.clarkjudge.org\/wordpress\/wp-json\/wp\/v2\/media?parent=1535"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.clarkjudge.org\/wordpress\/wp-json\/wp\/v2\/categories?post=1535"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.clarkjudge.org\/wordpress\/wp-json\/wp\/v2\/tags?post=1535"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}