A judge in California has, as we have all heard, struck down the publicly created law which bans two-person, same-sex marriage. This was no surprise, as most expected that this contentious case would spend many days in court.
Marriage between male and female is found (or so we have read) in all cultures, both historical and modern. The tradition for this view of marriage is long and deep.
Polygamy, which is marriage between one (usually male) and many (usually females) is rarer; and in many or most of those cases, one of the females is usually seen as the “first” or “head” spouse. The tradition of this kind of marriage is shallow and variable.
Marriage between three or more mixed sexes—groupings variable in number and composition—is exceedingly rare, and barely, if ever, countenanced. There is no tradition at all for these experiments in living.
For a moment, consider only traditional, male-female marriage. Forget the talk of reproduction, religion, and so on. For it is important to understand what most have forgotten. Marriage is not a “contract” between a male and female. That is, it may be partly that—the couple usually pledge allegiance of some kind, such as forswearing all others; again, traditionally—but marriage is not predominately an inter-personal contract.
Instead, marriage is a “contract”, or rather agreement, between the couple and the culture in which the couple lives. It is the culture which confers the special status of “husband and wife.” Marriage, culture says, is different, legally, religiously, and morally, from, say, two (or more) people merely cohabitating.
Another way of stating this is to say that it is everybody but the couple that confers the right of marriage. After all, the couple looks to society and asks each member of that society to recognize the couple’s bond, a bond to which is attached certain privileges and responsibilities.
To emphasize: it is other people, not the couple, that confers the right (and duties) of marriage.
Californians created a law which said, in essence, “We recognize traditional marriage only.” We can now see that this is another way of saying that the majority of the voters (especially the large majorities of Black and Hispanic people) did not want to confer a newly created right.
The judge who canned the law argued that society is wrong and that society must confer the right, a brand new right the judge was lucky to discover. They must, that is, abandon tradition and create a new culture.
There are three points of interest here. The first is tradition itself. As already said, by any reading of history, tradition is on the side of two-person, male-female marriage.
Those outside of two-person, male-female sets who want conferred upon them the status of marriage paradoxically ask to be part of tradition. That is, they want the trappings of marriage: the ceremony, the rights and, although we rarely hear about these, the responsibilities. But they also want the tradition overthrown, or abandoned. There is no solution to this paradox.
The other point is the wisdom of the judge over the wisdom of society. Now, it is certainly possible that the judge, acting in a parental fashion, knows what it is best for all society. And not just in the legalistic sense. The judge could have, for instance, nullified the proposition because it was discovered somebody forgot to dot an i.
But this is not what happened. The judge instead claimed that the right of marriage for two same-sex persons was there all along, only hidden from view. Society must confer this new right, sayeth the judge.
Once more, it is logically possible that the judge is correct, and that society should be coerced into doing something it does not want to do. But wholesale changes of these kinds, where entire traditions are upset, are never painless and are always, at the least, tumultuous.
The third, and most fascinating point, is that the judge, in slaying tradition, only discovered a right for two same-sex persons. He did not (yet?) unearth a right for three, four, or more mixed-sex persons. Nor did he tell us that people and cats could be wed.
Pose these kinds of scenarios to supporters of the judge and they will scoff and consider such absurdities unworthy of answering. In not answering, these supported admit defeat, or at least admit that their arguments are not sound.
Some see this and say it is obvious that marriage is only between two people. But, of course, that argument can only rely on tradition, but only on the part of tradition that they find comforting to their desires.
Since our California judge made this decision, which has already being appealed, the only thing for certain is that the acrimony has just begun.