Part 4 of The Definition of Marriage in Law & Politics: Obergefell 101 w/ Dr. Lucas J. Mather, Ph.D. (TRP Episode 133)
This is Part 4 of The Definition of Marriage in Public Law and American Politics.
Dr. Mather presents parts from his paper “Two Types of Marriage Equality: A Normative Analysis of Obergefell v. Hodges (2015)”.
It takes a look at Obergefell v. Hodges (2015) and Reynolds v. United States (1879). Specifically, Dr. Mather provides a theoretical framework by which to understand the essence of Obergefell, including a distillation of the legal rule the Court relied on but never explicitly stated: what Dr. Mather calls “the contemporary ‘marriage’ equality assumption”: The Essence of Marriage must become malleable to allow for the expression of minority sexual orientations within marriage.
At the time of the decision, according to friend of the Court briefs, Bisexuality is a minority sexual orientation. Homosexuality is a minority sexual orientation. Therefore, according to this legal rule, both must be expressible in a marriage definition, and any necessary condition of marriage from classical marriage equality must give way.
Prior to this set of cases leading up to Obergefell, marriage was like the Rock of Gibraltar, unchanging in its essence, and against it, the waves of sexual orientation were dashed. That essence was protected and recognized in law for millenia as a natural-law relationship, accorded respect in the Common Law and before, a special, univocal, coherent, sui generis definition of a type of relationship that not everyone was interested in or wanted to participate in: A union between a man and a woman, typically recognized by Law, by which a they become husband and wife for life. That concept matured into seven necessary conditions (discussed here), what Dr. Mather calls the necessary essence of Classical Marriage Equality.
But no one was punished for not being married.
Marriage took on a famous status recognized in the Goodrich Court (Massachusetts, 2003), as we saw in prior episodes, as “a vital social institution.” And not by accident. Not arbitrarily. (How could something so vital be at the same time arbitrary ? The Goodrich Court (and Obergefell) never seemed to see that question was posable but not answerable by their analyses.)
But some wanted the fame associated with the mere spelling and were willing to shank the lexical essence to get that spelling to apply to something they were interested in. The secondary definition of the same spelling, what Dr. Mather calls M2, “any close union,” is in very old dictionaries right along side what he calls M1 (classical marriage equality), has now replaced M1 in law across the nation in Obergefell. That’s because the Court invented, and then used the legal rule, what Dr. Mather calls “the contemporary marriage (M2, not M1, equivocating on the spelling “marriage”, begging the question against M1) assumption.” Now the Rock of Gibraltar isn’t marriage, the concept or the mere spelling of the syllables. The Rock of Gibraltar, according to Goodrich through Obergefell, is Sexual Orientation, and upon that Rock, the definition of marriage is dashed.
The Republican Professor is a pro-True-Marriage-Equality podcast.
Check out the papers at TRP Substack,
Warmly,
Lucas J. Mather, Ph.D.
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