Apparently, Some People Don’t Read This Blog
April 5, 2009
Let me preface this by saying that the only news I’ve heard in the last week involves either the Final Four (Tom Izzo, go kick some Tarheel ass for me, would ya?), North Korea (really guys?), and that apparently Ichiro has a bleeding ulcer (ouch). Now that we’ve gotten that out of the way, the New York Times on the Iowa gay marriage ruling:
“The new decision says marriage is a civil contractand should not be defined by religious doctrine or views.” [Emphasis mine — JLW]
Which is to say, the reason I’m wary of court decisions — as opposed to legislative action or ballot initiatives — encapsulated. Having ctrl-F’d the decision itselffor the word “contract” (three of my last seven days have involved air travel; go easy on me), it appears the editorial is working from this passage:
“This contrast of opinions in our society largely explains the absence of any religion-based rationale to test the constitutionality of Iowa’s same-sex marriage ban. Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them. See Iowa Const. art. I, § 3 (“The general assembly shall make no law respecting an establishment of religion . . . .”). The statute at issue in this case does not prescribe a definition of marriage for religious institutions. Instead, the statute declares, “Marriage is a civil contract” and then regulates that civil contract. Iowa Code § 595A.1. Thus, in pursuing our task in this case, we proceed as civil judges, far removed from the theological debate of religious clerics, and focus only on the concept of civil marriage and the state licensing system that identifies a limited class of persons entitled to secular rights and benefits associated with civil marriage.” [page 65; emphasis mine — JLW]
Now, I don’t have a problem with the opinion of the court that they should approach civil law as civil justices. The problem is that the means require they modify marriage as a contract, as it is as defined by state law. But this codification of marriage does not encompass the entirety of marriage (and was not meant to be more than a legal approximation) — marriage is a societal institution. The court has no authority to treat it as such an institution — it must treat, and modify it as defined by the law: that is, as a contract. Nothing more, nothing less.
Only society itself can modify marriage as a societal institution. The citizen body votes on a ballot initiative; their elected representatives — with authority that stems from society — pass laws. The law itself, I hear you say, defines marriage as a contract, etc.: but again — the definition of marriage as a societal institution goes beyonds the limits of the legal code’s authority. It is a social institution; it is part of the tradition; the tradition is not simply what is defined by government. The institution can only (? is best?) understood within the legal code as a contract: that does not mean that, as a societal custom, it is nothing more than a contract. It is, then, a legal approximation of marriage.
So back to the original point. The difference between a legislative means and a judicial means is how marriage is (must be) treated: as a social institution, or as a legal contract. This is a problem — or something to cause a touch of worry — only if you believe, as I do, that to define marriage socially as a contract is to devalue it. The decision doesn’t do that, and nothing I’ve said should be taken as any sort of comment about the validity of the decision itself. But the decision does give the Grey Lady cause to declare in an editorial: “marriage is a civil contract.” The thing to be wary of is that the approximation becomes the meaning. If that happens, I think a lot of people who have fought a very long time for gay marriage will look around one day and realize that what they won was only an approximation of what they wanted.
Now on to the things that matter in life, like Opening Day.