shirenomad: (philosophical)
[personal profile] shirenomad
Scientifically, a tomato is a fruit: nutritious plant tissue surrounding seeds, designed to be eaten by animals so the seeds might later be (ahem) deposited elsewhere surrounded by helpful fertilizer. But in cooking terms, a tomato is a vegetable because of its low sugar levels. If someone asks for a fruit salad, or a fruit sorbet, you would not include tomatoes, because you are in a culinary context. If someone in a science lab wants to study the effects of something on fruit, tomatoes would probably be fine, against because of the context, and you would not use them if the test called for a vegetable.

Just to confuse things further, in 1893, the Supreme Court ruled that a law regarding "vegetables" (and not fruit) included tomatoes in the meaning of the word (Nix v. Hedden if you were curious), not for scientific or culinary reasons but because the justices agreed that Congress had created the law in question to cover a category that included tomatoes. Later laws then made the same assumption about what tomatoes were. The law is funny that way: the intended purpose of a law can affect the very meaning of words in that context, and then that meaning can carry on to other law.

I believe this sums up why perfectly reasonable people can't seem to see eye to eye when it comes to Prop 8* and gay marriage.

Long ago in England, marriage was defined as follows: two people, man and woman, meeting before God and his representative the priest (or preacher) to vow to remain together for life, to support the family that results, and to harken back to the unions of Adam and Eve and of Christ and the church. There was no marriage outside a Christian church** and therefore no other definition of "marriage" applicable in England.

But the lawmakers of the day decided, over time, that there should be some legal structures and rights (next of kin, inheritance, etc.) that connected people who happened to be in family units. They asked the churches, the source of marriage in England, to share their records of marriages so that they could know who received these rights. The state, for the first time, became involved in the process.

And here was an understandable mistake: the lawmakers assumed that, other than marriage (as defined at the time), no other situation would arise when someone would want or need those rights. So instead of giving this package of rights its on name, they named it "marital rights" and the legal action that created them "marriage," even though that already meant something else. The two always occurred at the same time, so why not treat them as one act?

So the law was made, and so it stayed as it was carried to the colonies. And when the United States was born it used the same system of calling and treating marriage in the church and legal marriage as the same thing. One problem: America introduced a little thing called freedom of religion. So it wasn't too long before there were a good number of Americans that weren't even pretending to be Christian.

Some had their own systems of marriage. Some of those systems barely resembled Christian marriage. They definitely didn't go to a Christian church for the act of marriage. But for First and Fourteenth Amendment reasons we applied the marital rights to anything that resembled the original definition, and what qualified as a legal marriage began to expand.

That was the second point where we could have avoided confusion but didn't. We could have said "look, we aren't giving these rights because the two can find a third person to declared them 'married'; we give it because of X, Y, and Z, so let's stop calling it 'legal marriage' and call it something else." But we didn't, because the differences weren't that extreme at the time. They snuck up on us. And now we can go to the courthouse or Vegas, or ask our best friend to get a quickie minister's license so he can do it, and that's all the law requires to call it a "marriage." No fixed vows, no fixed authority. God's not required at all (He can't be for a legal definition in the United States).

The legal definition didn't just start expanding beyond the church definition, it started drifting away from it, due to numerous acts of legislation, judicial decisions, and just plain alterations to the social fabric. Out went the "for life" requirement; today you can divorce for no reason whatsoever. Out went any trace of the idea that sex, children, or family belonged within marriage; you can have all three without committing even temporarily to someone. Oddly, the change that might have truly set things in motion was the elimination of consummation as a (admittedly rarely invoked) requirement; it created the open possibility of a marriage that existed purely for the rights, not for the union that was the original point of marriage.

And when the smoke cleared, the legal definition of marriage was: two people, man and woman, who have pledged for an undefined period to act as a unit (usually but not necessarily for reasons of romantic love) in return for various legal rights and conveniences that naturally carry from them being treated as a single unit.

I'll annoy a few of my more traditional readers by saying this is not necessarily a bad legal status for the government to provide. It's convenient to be able to treat couples as one party for various purposes if they are willing to speak and act as one party. Further, given the stated purpose, the anti Prop 8 people are absolutely right: there is absolutely no reason to include the "man and woman" requirement. (There are reasons to keep minors or animals out of it, because minors and animals aren't considered capable of contributing to the legal choices of the larger unit.) Using this definition, the argument is perfectly consistent.

But we still call that legal status "marriage." And meanwhile, the Prop 8 supporters, when they say "marriage," do not mean the legal definition that evolved and developed over the past 200 years. They mean the traditional church definition. It's the definition they were using when they took their wedding vows, after all, and they aren't aware of any others. And if we use that definition, their argument is perfectly consistent: marriage is not about legal convenience and never was. It's about family, union, symbolism, tradition. (And yes, people are Doing It Wrong with all the E-Z divorces and Vegas weddings and such. The supporters aren't pleased about that either but for now they've lost those battles; one thing at a time.)

Two definitions, which were given the same name because their Venn diagram used to be a perfect circle. Not anymore. But everyone still thinks they do, or at least should; they've got the same name, right?

So getting back to my original metaphor, the Prop 8 supporters are the chefs that studied no botany, and are baffled as to why you keep insisting that in a botanical lab we can too study fruit by testing tomatoes. Because tomatoes are vegetables! You'd screw up if you treated them like fruit! And if they were in the kitchen, they'd be absolutely right; they just aren't in the kitchen, they're in the lab.

Likewise, a traditional churchgoer is not (necessarily) a legal scholar, and is baffled why someone could possibly think a marriage without heterosexual sex, without any possibility of natural children, makes any sense whatsoever. They're working on a definition and reasoning that makes perfect sense in one context but falls apart in another.

And it goes the other way too. The gay marriage supporters are the scientists who have never cooked anything more complex than frozen pizza. They don't see why the supporters refuse to put tomato sorbet on the menu. It's fruit! Fruit desserts are tasty! The chefs must have something against tomatoes! Except no, it's just because they don't think tomatoes make good ice cream. In the context of church marriages, it may well be the same: two men or two women just don't work given the church meaning of the word, which would mean criticizing a pastor for refusing to perform such weddings is just as unreasonable as criticizing the courthouse for doing the opposite. (I'm a law student, not a theology student, so I'll stick to my own area of expertise and leave this question for others.)

Are there people who support Prop 8 because they do have something against gay people? Of course. And there are probably people who oppose it as a kneejerk reaction as well. But I know many on both sides of the aisle who are decent, caring, God-and-humanity-loving people, and they are talking past each other because they are using entirely separate definitions for a word. Context matters.

* For those who follow California politics and the gay marriage debate about as well as Homer Simpson follows diet plans, Proposition 8 passed in 2008 and defined marriage throughout the state as between one man and one woman. A federal court struck it down as unconstitutional just this week.
** Save for the Jews of course, but no one counted them. Besides, most if not all of the definition still applied to them.

Date: 2010-08-07 04:31 am (UTC)
From: [identity profile] shadeykins.livejournal.com
This was an interesting post, thanks for it. :)

Date: 2010-08-07 10:41 am (UTC)
From: [identity profile] looniewolf.livejournal.com
You do realize you made an indirect fruit reference to gay marriage? =^-^= Just teasing ya. ^^;;

I recently mentioned to someone else concerning word evolution. Well, what you described is law evolution. The thing is? We have people fighting against the further evolution of the marriage law, and people fighting for it. But ultimately, this is a Constitutional issue.

If marriage is ultimately a law based on religious tradition, it is a violation of the Separation of Church and State doctrine in the Constitution. Thus civil marriage itself is Unconstitutional and needs to be eliminated as a legal apparatus. Considering the massive amounts of law that is based on marriage as a civil device, eliminating civil marriage is a no-go... unless we instead shift to another venue that arose to try and go around the Gay Marriage conundrum: Civil Unions.

Thus we eliminate Civil Marriage and have all future marriages become Civil Unions. All existing marriages are grandfathered over as Civil Unions. Marriage then becomes a matter of the Church, while the legality of what was marriage is declared a Civil Union from this point forward.

Now we have a different question here: is preventing homosexuals from having Civil Unions a violation of their Constitutional Rights? Yes. But there is no Separate But Equal doctrine here as everyone has Civil Unions, and marriage itself is now a religious device that has zero relevance on the legal front.

Rob H., who probably should have had coffee before writing that. ^^;;

Date: 2010-08-07 03:00 pm (UTC)
From: [identity profile] looniewolf.livejournal.com
Federal Law takes precedence over State Law. So if the Federal Government passes the Civil Union Act stating that Marriage is a Religious device and thus unconstitutional under the U.S. Constitution, and then replaces the office with Civil Unions, the States could complain, but they couldn't do that much. Well, take the law to Federal Court and complain to the Supreme Court maybe, but at that point you have a State out-and-out stating it is being prejudiced because I'm quite sure if would be one of those States that forbid Gay Marriage doing this. ^^;;

Date: 2010-08-09 07:00 pm (UTC)
From: [identity profile] johncwright.livejournal.com
"So the law was made, and so it stayed as it was carried to the colonies. And when the United States was born it used the same system of calling and treating marriage in the church and legal marriage as the same thing. One problem: America introduced a little thing called freedom of religion. So it wasn't too long before there were a good number of Americans that weren't even pretending to be Christian."

I hate to say it, but your precis of the history of Anglo-American law is remarkably incorrect. The English court recognized marriages between Jews, for example, including questions of paternity, legitimacy, and divorce. Characterizing marriage as merely a Christian institution which happened to adhere to English Law overlooks the real law, and the real age of the institution.

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