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    Deconstructing Marriage

    Deconstructing Marriage

    Yesterday I made the point that Chief US District Judge Vaughn Walker, who declared California Prop. 8 to violate the U.S. Constitution, was trying a bit too hard to insulate his decison on appeal by engaging in fact finding and credibility determinations on what essentially are legal issues.

    A similar view from Orin Kerr, writing at The Volokh Conspiracy:

    The question is, how much will those factual findings matter on appeal?

    If the Supreme Court agrees to hear the case, I don’t think the factual record will matter very much. I think that for three main reasons. First, the Justices will know that this case presents a defining moment for their respective tenures on the Court. This will be one of the biggest decisions of their careers, and its importance transcends a single trial before a single judge with a particular set of witnesses. These sorts of mega-big-picture cases tend rest less on the details of the factual record than other cases. Second, the Justices will certainly recognize … that … Judge Walker was trying to use his facts to make an argument designed to persuade the Justices to agree with him. For better or worse, I suspect a majority of the Justices will respond to that dynamic by significantly discounting those facts.

    The fact finding sought to establish that there is no legitimate societal difference between traditional marriage and gay marriage. In doing so, the Judge examined individual aspects of a marriage, and based on the testimony he credited, determined that there were no substantial differences, hence, no legitimate state interest in maintaining a distinction.

    These fact findings have heartened people like Dahlia Lithwick who writes:

    It’s hard to read Judge Walker’s opinion without sensing that what really won out today was science, methodology, and hard work.

    There is a certain lack of reality to Judge Walker’s fact finding, in that it deconstructed a traditional marriage to nothing more than its parts, ignoring thousands of years of history and its role in society.

    The problem for supporters of the decision is that it is doubtful the majority of Justices on the U.S. Supreme Court will engage in such a deconstructionist approach.

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    Dan McLaughlin points out some circular thinking by Judge Walker. From Judge Walker's decision: ". . . while domestic partnerships offer same-sex couples almost all of the rights and responsibilities associated with marriage, …the record reflects that marriage is a culturally superior status compared to a domestic partnership…. proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.”

    McLaughlin: "Suddenly the “social meaning” and “cultural meaning” and “status” of marriage is not irrelevant, but essential. This is what economists call free riding: traditional marriage gains social and cultural significance by long experience and association with moral, religious and cultural norms – and yet it is constitutionally improper to deny the same status to an institution that doesn’t comply with those norms. Judge Walker puts the culture on one side of the scale while lifting it off the other . . . "

    So let's think about whether the "social meaning" or "cultural meaning" of marriage will automatically apply in the same way to same-sex marriages, or if same-sex marriage will change those meanings: Gay married men in Massachusetts are reportedly far less likely to value sexual exclusivity than are heterosexual married couples. Beyond issues of pregnancy, there are characteristics of male sexuality which make the desire for more than one partner entirely understandable. And they are often able to maintain a strong emotional connection with one person while having sex with others. But the monogamous model for heterosexual marriage is more likely to result in a stable home environment for children than a model in which either the man or woman feels little social pressure to remain faithful sexually. And a recent poll indicated that Americans still highly value the ideal of sexual fidelity in marriage.

    So . . . should gay married men insist that people should think that THEIR infidelity is just as bad as HETEROSEXUAL infidelity? Or will they expect different social and cultural meanings to be attached to their unions when it comes to their sex lives? On the other hand, will heterosexual couples be expected to accept Andrew Sullivan's view that gays have a lot to teach straights about not being so uptight about sexual fidelity? Who gets to decide what the future social and cultural meanings of marriage are if moral, religious and cultural norms cannot be considered?

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