Thursday, August 5, 2010

A Bad Day for Democracy, Marriage, and Children

The completely unsurprising ruling by Judge Walker in the appeal against Proposition 8 is out. As expected, the ruling overturns the decision of the people of California with respect to their own constitution. Judge Walker's ruling will certainly be upheld by the notorious 9th Circuit Court of Appeals, so everyone expects the matter will come at last before the U.S. Supreme Court. Meanwhile the New York Times provides reports and analysis with its own predictable slant. The blogging Anchoress, Elizabeth Scalia, has a brief discussion and many links to other comments at

Walker's ruling represents a repudiation of 5,000 years of understanding of marriage as about socially approved sex between a man and a woman such that any children resulting from that union are understood to be socially, economically, and legally the responsibility of the two parents whose union produced them. Now, it seems, "gender" is irrelevant and so, essentially, are children. Marriage, according to this ruling, is about the relationship between two adults based on the sexual proclivities of those adults. In the past, the adults' sexual desires neither excluded nor included them with respect to marriage. If you examine the usual lists of those excluded from marriage, as inserted in the old English Book of Common Prayer, they included all sorts of people with varying degrees and kinds of kinship but said nothing about including or excluding people on the basis of their sexual desires.

But now it seems, one's sexual inclinations or "orientation" constitute a basis for eligibility for, indeed a right to, marriage. Why this right should be extended only to same-sex couples and not, say, polyamorous groups of various numbers and combinations, or to same-sex pairs living together in interdependence but not in a sexual relationship, like the elderly Burden sisters [see ], who live together in interdependence but do not have a sexual relationship, is unclear. Indeed, advocates of such extension of the "right" to marriage in other kinds of sexual relationship are already on the march. At least polyamorous groups of male and female have the capacity to produce children and hence those children have a claim on the state's protection through legal marriage, which ties those children to those parents who created them.

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