The Definition of Marriage

A Constitutional Classroom at California State University

by Lucas J. Mather

Let’s get back into the Marriage Equality lecture here picking up from last week, the professor said. So what do you notice about these dictionaries?, the professor axed.

They all have the “man-woman” definition of marriage in them, the student said.

[It was quiet].

Most of them have both these definitions, the professor said, pointing to the board, which said :M1 [Classical Marriage Equality], “A sui generis union between a man and a woman by which they become husband and wife”, and M2[Contemporary Marriage Equality], “Any close union.”

These English definitions go back hundreds of years. I have checked the archives of Claremont Colleges myself. Old dictionaries. Same stuff. Here’s Black’s Law Dictionary, originally published in the 1800s. [Its definition is consistent with M1, not M2].

[The students seemed distracted. They looked away. Looked down].

And so Obergefell overturns the Baker case from the 1970s. Here that case is, the professor said, shining the PDF for all to see–the Minnesota Supreme Court. Notice, he said, footnote one. What’s in footnote one of the Baker case?

A dictionary, a female student said, crinkling her brow.

Yeah, and which definition is that, M1 or M2?

M1, she said.

Yeah. What Baker did when it decided the case was, they looked at the dictionary, and said, even though there is no Minnesota statute that explicitly defines marriage as M1 , it was understood that way because that’s what the word means. See, it cited Black’s Law Dictionary, and Webster’s.

Yeah, she said.

Note carefully, race plays no role in the classical definition of marriage. We saw that with the Perez case in California, remember from last time? [Some Hispanic students nodded reluctantly]. Yeah, recall that case, brought by a Catholic couple–Bible thumpers– did away with interracial marriage bans in California by incorporating the Biblical tradition into California law. Recall, the Bible and the Classical tradition of Greece, Rome, etc., does not have any racial conditions in its essential defintion of marriage. All Perez did was go back to that tradition and use it to get rid of the Progressive racist additions to marriage definitions. Recall the racism of the Progressives.

[The students nodded, reluctantly].

So what Obergefell did in overturning Baker, was say, in coming to the legal defintion of marriage , dictionaries don’t count as evidence. See, here’s an Oxford English dictionary from 2015, and as you can see it clearly has M1 in it, based on 2 billion uses of the term.

[The students nodded reluctantly].

So if you can’t use a dictionary to tell what the definition is, what is evidence of the definition? The professor axed.

[The students stared blankly. No moral superiority existed any more. That false pretense had been stamped out by reason and history, which they don’t normally get in college].

I mean, if this is the seven necessary conditions implied by M1 in the tradition, in classical marriage equality, you have a lot of guidance as to what the term means, right? Enough to get rid of interracial marriage bans as fraudulent to the tradition, as we saw in Perez and Loving. Right? Let’s look at those 7 necessary conditions again from Prop 8, DOMA, and all the dictionaries, the Bible, Plato, etc: Ready?

Marriage is a 1) civil contract between 2) living 3) human beings who are 4) of an age required for consent, and who 5) are not closely biologically related, and who are 6) of the opposite sex, and who therefore 7) number , male and female, 2 and only 2 in the relationship, not one and not three or more.

The professor continued: California Progressives added an 8th condition: If spouse 1 was white, spouse 2 had to be white, and vice versa. Of course, that is foreign to the tradition, the essence , of classical marriage equality’s 7 necessary conditions plus whatever sufficient condition makes a marriage a marriage.

[The students looked with open mouths. They weren’t used to not being able to feel easily morally superior to the professor–this has taken them off guard].

All marriages were equal qua marriages. The King and Queen were just as married as the lowest paupers in the village. It has always been such, and always be, Classical Marriage Equality. This is Marriage Equality. To have Marriage Equality, you have to have Marriage. Real marriage. This is it. Of course you have the tradition of M2 in the dictionaries and in the English language, but that was never the legal defintion of marriage as applied to humans. It was always used of non-human things. Let me show you my Apple MacBook Pro, which isn’t that old, really: [Professor types ‘Marriage’ in the dictionary function, it pulls up a version consistent with M1 and also M2 verbatim]. Look there, see the example: “Any close union, ex. ‘a marriage of jazz, blues, and gospel.'”

So, the professor said, this M1 tradition means you can’t marry a dead person. I love Aristotle, but I can’t marry Aristotle. He’s dead. Love doesn’t win there. (2), you can’t marry Walmart though you can civilly contract with Walmart–Walmart isn’t human (3). There’s pain in marriage, but you can’t marry a cactus so it ain’t that kind of pain. You can’t marry an infant (4) though it is a little vague as to when someone is old enough to consent, and (5) is negative but it’s not clear it could be affirmative, so we won’t hold that against it–I can’t marry my grandma or sister, or mom, see the New Mexico case on the screen there between a son and mom wanting to be married. And of course, in the recent controversy about number 6, it was claimed “gay marriage” was banned, though if you look through the history of California statutes, you won’t find a law banning gay people from participating fully in M1 if they want to–in fact, I knew a legally gay married couple in the early 1990s in California. He had a separate bedroom than she did, but they were married and were both gay. Neither did California make homosexual unions illegal. So they weren’t banned. In fact, the opposite, they were protected at the time of this controversy. The legal union between me and my landlord wasn’t banned just because it’s a different kind of thing than Marriage is, right? There was never a requirement to be heterosexual, in order to be married. No one ever asked me if I was, for instance. No official ever took cognizance of my sexual orientation. That’s a fundamentally different fact than the racial criteria, which were explicitly banned and in fact, taken cognizance of in the criminal law.

[The students nodded].

So Obergefell says, in the tradition of Perry v. Schwarzeneggar, you can’t look to tradition as evidence of what marriage is. You can’t cite the dictionary. So, what is evidence? And what is the new definition? If M1 is now mysteriously “unconstitutional”?

I don’t know, a student said.

Very good, the professor said. Yes, a lot of people naively think, that removing #6 , the opposite sex requirement, improves this definition somehow. And why might that be?

Because it now includes more relationships under the umbrella of legal marriage, another student said.

Yes, good! That’s right, I think that is the reasoning. Or was. So more arrangements–let’s not beg the question and call them marriage–more relationships would count as “marriage” if you removed #6. What’s the problem with that?

[The students all looked, sincerely looked, as if for the first time].

The problem is that that would be a reason to remove all of the conditions on this list, so that there are no necessary conditions at all for marriage. Anything would count. Any close union has one, or two conditions: it’s a union. It’s close. All of these 7 necessary conditions are the Tradition of Classical Marriage Equality. Not just #6., the professor said.

Take #7, the couple requirement, the professor said as he walked over to the computer and Googled “why can’t 3 people get married” and then, in a new tab, “woman marries herself Anderson Cooper”. Notice, all of this challenge to #7 is recent. Accidentally correlated with the #6 controversy? I don’t think so. I think it was naive to think we only to remove 6 and leave the rest intact. Why was that naive? the professor axed.

Because, a student said. You have no basis for the rest of it. Like you said, it’s all the Tradition, it’s all in the dictionary, or implied by the dictionary and Tradition, she said.

Good, the professor said. You sound educated. You sound officially less idiotic than most of these yahoos running around college campuses these days who don’t know a dictionary or logic text from the Constitution from their butt.

Thank you, she said, smiling. Yeah, you can’t say you can’t use Tradition to define marriage, on the one hand, and then keep elements of the Tradition in the legal definition, on the other hand. In the end, you have no definition at all.

That’s right, the professor said. Very good.

Professor, why are we going over this? the student said.

Funny question, the professor noted. You haven’t asked that about any other topic. Why this one?

Uh, well. It just seems a little biased.

[The professor let this sit for a moment, and smiled].

If you knew all this already, I’m sorry to waste your time. But you’re not truly educated unless you can state, and even defend a bit, both sides of a controversy. And there is a controversy here, right?

Right.

And you agree with Obergefell’s side?

Yeah.

And you can state, fairly, the other side without bias and also defend it? the professor asked

[The student was silent–all were].

It’s a real question, the professor probed again.

I just thought the other side was bigoted. That’s what I was always told, he confessed.

So, you just revealed something, the professor noticed.

What? he said sincerely.

Your bias, the professor said, smiling.

[The students thought about this and smiled].

My bias is to create something in you, the professor said. It’s to create a truly educated person. It’s to replace indoctrination with true education.

That’s my job, the professor added, after a moment.

So let me ask you, if Prop 8 is struck down, and the California Constitution has no explicit definition of marriage, and as Perry v. Schwarzeneggar explicitly ruled, tradition isn’t evidence of the definition of marriage, then what is the California definition?

Whatever the Court says it is, a student said.

That does seem to be what the Court is saying, the professor said. Not bad. Not bad at all.

The student smiled and said, but isn’t that the way it’s supposed to be?

Why would it be? The Constitution doesn’t define marriage. That makes a Court a super-legislature, doesn’t it? Why would a 5-4 majority there, or a 4-3 majority at the In Re Marriage Cases in 2008, why would that be a more legitimate majority than, say, 52% of the voters, voting?

Because they decide what the Constitution means, she said.

But we just noted the Constitution doesn’t mention marriage.

True, she said. But it does mention equality.

Sure, the professor said. But to have marriage equality, what do you need first?

[It was silent as snowfall on Christmas Eve].

You need marriage, real marriage, the student said.

Yep, the professor said. And where do you get that, if not the tradition? [The professor lifted up a heavy dictionary high over his head]. Where do you get that, if not…[and the professor dropped the dictionary… BAM!…jolting everyone upright]… here?

Aren’t you just making shit up at that point, the professor asked.

Isnt’ that what marriage is, another student said.

See, this is good. We are getting somewhere. You have a body in the electorate that thinks that. And they want to force that view on everyone and call it “Constitutional.” And then you have the other side, which says, Marriage is real. It has an essence. It’s not made up. It’s something humans have discovered that’s good for us. And it needs to be protected.

[It was silent. Everyone was innocently looking up at the professor.]

What’s bigoted about that?

[Everyone’s face said, nothing].

See you next week, the professor said. I hope you took good notes because there will be a quiz.

[Groans].

Copyright Lucas J. Mather, Ph.D.
All Rights Reserved
Originally posted to Facebook Saturday, 2 June 2018 at 11:34 pm