This insightful guest post is from Kathleen Knudsen, Regent 3L and Family Law student:
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”
— Lewis Carroll, Through the Looking Glass
Recognized by philosophers and peasants alike, for millennia the word “marriage” meant something specific: the scared, physical, and legal union of a man and woman into a new family unit. In 1888, the United States Supreme Court, explained that marriage “is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.” Maynard v. Hill, 125 U.S. 190, 211 (1888). To protect this interest, the Court then explained that marriage is “something more than a mere contract,” because, once the marital relationship is formed, “the law steps in and holds the parties to various obligations and liabilities.” Id.
Because this relationship carries special privileges and responsibilities, for centuries laws across all fifty states have imposed fairly consistent substantive requirements. Traditionally, these requirements are dual gender parties, within the age of consent, monogamy, and an exclusion of marriages within a certain degree of blood or affinity. Within a limited degree of variability, these requirements cross jurisdictional boundaries and have been inherent in some fashion in the definition of marriage for centuries.
Yet, two weeks ago, five people redefined the millennia-old word “marriage” for a nation of nearly 320 million individuals. Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, ruled that marriage no longer required two genders, striking down a key substantive marriage requirement. The Court attempts a dance of legal finesse by striking down one substantive requirement (dual gender) upon the justification of another substantive requirement (monogamy). The Court declared that “the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” Unfortunately, a decision rationalized by a need for “equality,” “importance to the committed individuals,” “dignity,” “individual autonomy,” and the ability to provide individuals the opportunity to “find other freedoms,” among other similar reasons, provides little assurance that the remaining substantive marriage requirements have any more security than dominos at the end of a chain in which the first has already fallen.
In a live chat on the Washington Post website following the Obergefell decision, columnist Steven Petrow took questions about the decision and LGBT issues. One person asked, “What about the limit of marriage being between just two people. The claims could equally be made that marriage could be between three men, two men and a woman, one man and dozens of women. Will this end here or expand the definition of marriage?” Mr. Petrow’s response was insightful: “This is part of the fear-mongering and backlash to the marriage equality movement.” He went on to explain that there are already subtle differences among states regarding substantive marriage requirements. Unfortunately, he failed to mention that despite those subtle differences, the broad categorical requirements remain basically the same. And, the “fear-mongering” might just be more legitimate concerns than Mr. Petrow is willing to acknowledge.
With the dual gender requirement of marriage being repudiated in some Western nations around the world, individuals are now challenging the requirements of monogamy and relationship degree. A government ethics committee in Germany announced last fall that incest laws “were an unacceptable intrusion into the right to sexual self-determination,” while a court in New York state held that a marriage between an half-uncle and niece was legal. In Montana, Nathan Collier and his “wives” Victoria and Christine applied for a marriage license in an attempt to legitimize their polygamous relationship. Nathan said that he was “inspired by . . . [the] decision legalizing gay marriage to apply for a marriage license so that he can legally wed his second wife.” His argument? His second wife deserves “legitimacy,” just like Mr. Obergefell’s partner did. According to the Court’s definition of marriage based on its “importance to the committed individuals,” it’s tough to explain how Mr. Collier’s justification is any different from Mr. Obergefell’s.
The German Ethics Council, in recommending that incest be made legal, said in a statement: “The fundamental right of adult siblings to sexual self-determination is to be weighed more heavily than the abstract idea of protection of the family.” (Emphasis added). Today, protection of the family is becoming an abstract idea because the concept of the family itself is becoming abstract. Once we cease to be able to define marriage or the family unit, protecting it becomes far less important, and infinitely less achievable.
Who defines words? Right now, it appears that five unelected Justices of the Supreme Court can define words to mean whatever they want. As Humpty Dumpty said, “The question is which is to be master — that’s all.” Unfortunately, we all must live with the consequences of those definitions, which might very soon mean the legalization of polygamy and incest.
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