Thursday, November 13, 2008

On maple trees, vanilla ice cream and gay "marriage"

This continues a series begun here yesterday, with this post.

There is a maple tree in my backyard. No matter how loudly I demand that you call it an oak tree, it will not produce acorns.

If I secure a court decree renaming that maple tree a money tree, its leaves, now littering my backyard, will still not be legal tender.

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Imagine a world in which all citizens have a right to government-issued vanilla ice cream. In fact, governments on this hypothetical world have come and gone, and nations have risen and fallen, but all leaders at all times, religious and civil both, have encouraged the consumption of vanilla ice cream. Families are believed to be stronger when united by a shared love of vanilla ice cream. "Vanillage" is the word that has long been used to describe this right.

Of course, on this hypothetical world, as in our own, there are some who do not like vanilla ice cream. Some, whether they like vanilla ice cream or not, eschew it, in the service of a Higher Power. Others simply can not abide the stuff. It is in their nature to prefer chocolate ice cream instead.

They demand that "vanillage" be redefined to include the right to chocolate ice cream as well as vanilla. But that, say the shocked majority of vanilla ice cream-loving citizens of our hypothetical world, will debase vanillage. It will change it forever. And what, they ask, of those who prefer strawberry or *shudder* Rocky Road? Must such persons also be accommodated?

The chocolate activists go to court to press their case. They say that their rights have been denied because they are not provided with chocolate ice cream according to their own natural desires. The majority responds that the chocolate lovers have been denied nothing. They have the same rights to vanilla ice cream as anyone else; it is the chocolate lovers who refuse the benefits of that institution and demand something different. How should the wise judges in our hypothetical world rule?

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It is a fact that the meaning of a word sometimes changes over time. "Fie," I was told in my high school English class, was once the vilest of swear words. Through overuse, its power was lost, and it became a mild oath, suitable for Shakespeare. Later still, it became quaint and utterly useless. (Persons fond of overusing a slightly longer f-word should find this a cautionary tale.)

"Gay" was a word that once -- even in my lifetime -- meant merely "happy." Gay was also a proper name, given to men and women both. There was a girl in my high school class named Gay. Perhaps it was an old family name, going back generations. But I doubt she's passed it on to her son or daughter. Even 35 years ago, the meaning of that word was beginning to change.

I can accept the evolution of language. The publishers of dictionaries depend upon it. But "marriage" is a legal bond between a man and a woman and it always has been. The word has not been "hijacked" by the Religious Right, as gay activists charge. It is gay activists who are attempting to hijack the word "marriage." Over time the meaning of that word may change. But it has not changed yet. A court may decree that the tree in my backyard is an oak, or even a money tree, but it will still be a maple tree. And people will lose respect for any court that pretends otherwise.

People will lose respect for our courts, also, if courts insist on redefining relationships that aren't marriages as marriages. Gay people are not denied the right to "marry." They do not wish to marry because they do not wish to live with and start families with persons of a different gender. They have this right, but they reject it. But that does not mean that chocolate ice cream and vanilla ice cream are the same or that the State must pretend that they are.

Persons wishing to change this state of affairs should not look to the courts, but to their neighbors instead. I would say that, at least in my limited experience, most people favor legal recognition of gay partnerships -- so a gay man can be at his partner's bedside in the hospital, or so that one partner may provide insurance benefits for the other. This is insufficient for some activists. But people will bristle at -- and will resist -- attempts to change the definition of marriage by judicial fiat.

Activists hoping to advance a gay rights agenda would be well advised to take their crusade out of the courts. If this is a civil rights struggle, it is one that does not belong in, and will not be helped even by "successes" in, the courts.

* * * * * * *
Tomorrow, something really controversial.


Empress Bee (of the high sea) said...

very good post curmy. (but i still like cake.) since i live on a golf course and i don't play golf, what if i started calling it a cruise ship?

smiles, bee

Dave said...

Marriage has always been a man/woman thing; but, it hasn't always been a government sanctioned thing. That said, your main point that courts don't change societal norms for the most part is absolutely right.

74WIXYgrad said...

Problems with letting judges legislate from the bench is that gives the judicial branch too much authority. We have a system of checks and balances in this country in order to give us fair legislation.

To complicate matters recently judges have used foreign laws to back up their decisions.

Sarge Charlie said...

I am looking forward to something really controversial. I have been thinking about doing a marriage post but am not sure I can do it without blowing my top.

Hilda said...

Good post even though I don't agree with your position.

A couple of points/questions:

1) Is there in fact a definitive definition (!) for the word "marriage"? If so, where and who determined that definition?

2) The idea of marriage has changed before - there was a time when it was illegal for peple of different races to marry. I believe it took a court to change that.

In my view "marriage" should be a religious term, to only be used if a religious ceremony takes place and having no effect on legal issues, rights and responsibilities. If a religious ceremony doesn't take place, than a civil union should be undertaken by both heterosexual and homosexual couples.

Kacey said...

Absolutely right on! What a great post! I love the maple tree vs. oak or money tree and the vanillage. Your mind works in ways that I just love.
If the chocolate lovers want marriage for insurance purposes, allow me to disabuse them of their feelings of discrimination. I ran off and got married at seventeen, then got sick two weeks later and spent ten days in the hospital. Since I was no longer on my Dad's insurance policy, my poor new husband had to spend his entire life savings on the hospital bill. I think their argument is with the insurance companies and their partner's families, not with the social structure of America. If marriage is to be redefined.... I know lots of people who would want to marry their dog, because they love Fido so much and need protection against large vet bills.

SQT said...

Great post. I don't like courts deciding these issues either. I guess I'm a believer in letting society choose. Right now in California (where I live) gay marriage has been voted down. I have no problems with gay marriage myself but if the majority of the state votes against it, then that's the course the tide is taking right now. I think Californians voted against gay marriage because it had been pushed through via the courts. I'm sure one day gay marriage will be legal here because I don't think the gay community will stop until it is. But if it's a decision that is made by the courts and not the people, then this whole back and forth-- legal-then-not-legal-- isn't going to stop.

Shelby said...

Yes. You are right, just as I knew you would be.

I've changed my mind about you - in that you shouldn't run for president... instead I want you to be on the Supreme Court, or any Court.

You remind me of John Adams a bit. Have you read the book of him by David McCullough? Or have you seen the HBO movie of him? It's quite good. This makes me think of it, and of the men at that time who were passionate about truth and civil rights (liberty) - and who did something positive for the future, at great risk of peril for themselves.

More please. And often.

Dave said...

I just have to say, and apologize ahead of time, 74, 99.4% of our laws are derived from foreign countries. If you look at the case law from the late 18th and early 19th century, you will find that the judges based their decisions on British cases. As we enacted statutes, they were copies for the most part, of British laws.

Reference to, even relience on foreign law is not a bad thing in and of itself.

The Curmudgeon said...

A couple of quick things:

Shelby, at first I thought it was very nice of you to compare me to John Adams... and then it occurred to me... pompous, egotistical, thin-skinned, long-winded John Adams. An invaluable diarist but a dreary author.... (I'd put a smiley face here to show that I'm not being entirely serious... but I lack the technical skills.)

Dave (& Hilda as well) -- the idea of civilly recording marriages never came up until the state became separate from the church. In the Middle Ages that was impossible. Even later, when a separate civil administration grew up, keeping track of marriages was handled by the church. Of course, in England, for example, the bishops of the established church also sat in the House of Lords.

But I don't think that because marriages were traditionally registered in churches we can say that the State has no interest in marriage. Marriage has been an instrument of state policy since ancient times. The question that confronts us now is what interest the State continues to have in traditional marriage aside from the obvious interest it has in regulating the termination of marriage. (And, Hilda, reading your comment again, I'm not at all certain that we do seriously disagree on this.)

Dave & Cliff -- Quoting from 5 ILCS 50/1: "The common law of England, so far as the same is applicable and of a general nature, and all statutes or acts of the British parliament made in aid of, and to supply the defects of the common law, prior to the fourth year of James the First, excepting the second section of the sixth chapter of 43d Elizabeth, the eighth chapter of 13th Elizabeth, and ninth chapter of 37th Henry Eighth, and which are of a general nature and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority."

If you're going to be a common law jurisdiction, you've got to get your earliest precedents from somewhere. This is the starting point in Illinois.

Even today, a tort or contract lawyer might find a case from England or Canada or Australia to be on point and suggest it as persuasive. It probably wouldn't be as persuasive as, say, a case from the Supreme Court of the state next door... but it could be used.

This is different, though, than relying on foreign cases or commentators, particularly from non-common law countries, to interpret American constitutional questions. I wouldn't go so far as to say it should never be done... but I should think that such sources would be the least persuasive of any authority one might cite. There are, apparently, members of the Supreme Court of the United States who may think differently. I've never researched it in detail.

TC said...

I came via recommendation from Shelby. Very interesting. Good read.

Patti said...

I agree with Kacey about the way your mind works, what you have written is definitely food for thought. I guess I'm too busy thinking about more small canvas stuff.