Tort and ReTort -

Tort and ReTort - Jeff Fecke's not a bad guy. But reading his blog, you can tell he cut his political teeth on Bill Clinton.

He wrote a long response to my Open Letter to Gay Marriage Supporters yesterday. He made this point, slightly edited for brevity:

First of all, I'll stipulate for the purpose of argument that the definition of marriage is stable and cross-cultural. I can show many reasons why it is not, has not been, and likely never will be, but that's beside the point.

No, it's not. In every significant society in the world, "Marriage" has always been between men and women; usually but not always one of each. The total number of spouses per marriage may be more than two, but the number of genders involved, worldwide, throughout history, has pretty uniformly been "two". No real way around it.

Jeff continues:

The fact is, most Americans do have a clear idea of what marriage is, and it is the union of a man and woman who love each other. Or as Minnesota Statute 517.01 states:

Marriage a civil contract.

Marriage, so far as its validity in law is concerned, is a civil contract between a man and a woman, to which the consent of the parties, capable in law of contracting, is essential. Lawful marriage may be contracted only between persons of the opposite sex and only when a license has been obtained as provided by law and when the marriage is contracted in the presence of two witnesses and solemnized by one authorized, or whom one or both of the parties in good faith believe to be authorized, so to do. Marriages subsequent to April 26, 1941, not so contracted shall be null and void.

But this, of course, leads to an obvious answer to Mitch's second question: what is the new definition that can pass legal muster? Quite simple:

Marriage a civil contract.

Marriage, so far as its validity in law is concerned, is a civil contract between a man and a woman two people, to which the consent of the parties, capable in law of contracting, is essential. Lawful marriage may be contracted only between persons of the opposite sex and only when a license has been obtained as provided by law and when the marriage is contracted in the presence of two witnesses and solemnized by one authorized, or whom one or both of the parties in good faith believe to be authorized, so to do. Marriages subsequent to April 26, 1941, not so contracted shall be null and void.

Strike thirteen words, add five. Not difficult, not at all. The courts wouldn't even blink.

Voila!The secret to all things! Write or rewrite the law!

Think of the ills we could fix if a simple rewrite was really all it took. For example, let's take the following sentence:

Mitch Berg is a single guy who spends his limited free time blogging.

Not good enough. Let's fix reality via re-write:

Mitch Berg is a single guy who spends his limited free time blogging is in a torrid relationship with Marisa Tomei.

Wow. I took out six words, added eight, and reality suddenly looks much better! And no court would even blink at it, either...

...although Ms. Tomei might.

Absurd? Sure. Just as absurd at the notion that striking references to gender, and opposite gender, will change peoples perceptions about what marriage is supposed to be.

Now, Jeff's redefinition might make sense if he doesn't try to define "Marriage", but rather "Civil contractual union". Those are the parts of "marriage" that might rationally be construed to be subject to equal protection.

Maybe.

Jeff says:

Now wait, you say--didn't Mitch say "Please show me a line that will allow two 'people who love each other' that will not allow any pair of roommates or pals or co-conspirators to call themselves 'Married' for any reason they want. By the way, 'people do that today - look at Britney Spears' will not cut it as an answer[.]"

Yes he did--but he can't take that off the table, because that's the heart of the issue.

It's completely irrelevant to the real issue. It's like saying "Lots of women have children for stupid reasons. That shouldn't be used to prevent men from conceiving and bearing children!" The issue is not "can the likes of Britney Spears get married to guys for stupid reasons", any more than it is "Should marriage be harder to get into?" (as good an idea as that'd be). The question is "If Britney wanted to enter into a "lifetime partnership" with Christina Aguilera instead of Jason Alexander, would that have been a "marriage" in the sense of the term that the vast majority of the people are willing to recognize?

He also notes:

There is a good argument to be made that the reason Roe v. Wade is still raw is that it was imposed on the nation by an activist Supreme Court.

Then again, when Loving v. Virginia was decided, support for anti-miscegenation laws dwarfed support of banning gay marriage. Over 90% of Americans were in favor of letting some states keep the races "pure." An activist court decided that case (and changed the definition of marriage in this country, for what it's worth). And now, only 38 years later, the idea of making a marriage of a black man and a white woman illegal just for the color of skin involved seems barbaric.

Right. Because it involved a definition of "Citizen" and "Human" that truly was barbaric.

Nobody this side of the lunatic fringe believes gays are not subject to the same rights, laws and protections that everyone else is. This isn't about the definition of "Human". It's about the definition of "Marriage".

Which is why in a perfect world I'd say "get government out of the business of performing marriages, and let them stick with enforcing contracts". Let them issue civil unions, and leave the more ephemeral concept of 'Marriage" up to churches (and, I guess, ship captains), where the subject belongs, and let people decide where and how they want to observe marriage.

What is going to happen if we change the definition of "Marriage"? For starters, the market will change the definition of "Insured". Look for insurers and employers to drop, or reduce, the benefits of marriage, as the concept of marriage becomes too open to cover anymore.

Posted by Mitch at March 3, 2004 06:32 AM