By: Randy Lee
Before we can consider the public purposes of marriage in
America, we must understand what marriage means in America.
In trying to understand what marriage means, we realize how
convoluted our definition has become. Without even reaching
the issue of same-gender unions, the United States Supreme Court
has seemingly led the way over the last forty years in confusing
the concept of marriage as both a legal and social institution,
ultimately reducing it to a temporary, limited, and potentially
harmful relationship to which neither sexuality nor procreation
need be bound.
By their insistence in characterizing marriage as a right, the
judiciary has caused further confusion. In fact, as the
Supreme Court in particular has characterized marriage, the right
to marry, at least in the constitutional context, is legally an
oxymoron. To understand why this is so, one must first
recognize that a constitutional right is a guarantee against state
interference. Coupling this understanding of right with the
legal concept of marriage, one is left to ask, particularly given
the current debate over a right to marry for gay or lesbian
couples, what state interference a right to marry would prevent
that the Court has not already blocked.
In a haunting concurrence in Lawrence v. Texas, Justice
O’Connor wrote, “I am confident, that so long as the Equal
Protection Clause requires a sodomy law to apply equally to the
private consensual conduct of homosexuals and heterosexuals alike,
such a law would not long stand in our democratic
society.” Can the same be said of marriage? What if the
Supreme Court said today, "We will accept your Judeo-Christian
notion of marriage, between a man and a woman, but only if you are
willing to take the whole package, an irrevocable partnership, for
the whole expanse of daily life, for the good of spouse before
self, and freely embracing the procreation and education of
offspring"?
Perhaps Justice O’Connor is right: In our democratic
society, such a definition of marriage would not long
stand. But we must be willing to accept the challenge that we
can sell as good such an understanding of marriage. In
addition, our marketing of this concept of marriage cannot be
limited to court houses or legislatures, for in the end, the only
victories that matter are those to be had in human hearts and lived
in human lives.