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Judge Walker’s Alternative Purpose of Marriage

August 7th, 2010

You will recall that I claimed in my AOL News article that the Essential Public Purpose of Marriage is to attach mothers and fathers to their children and to one another. Some people dispute this by pointing to alternative purposes of marriage, or by discovering groups of individuals who seem not to be participating in this public purpose. I deal with some (but admittedly not all) of those cases in this podcast.
Here is the purpose of marriage as outlined in Judge Walker’s opinion. He quotes a Harvard historian, with approval, who offers this alternative understanding of the purpose of marriage:

marriage is “a couple’s choice to live with each other, to remain committed to one another, and to form a household based on their own feelings about one another, and their agreement to join in an economic partnership and support one another in terms of the material needs of life.”

I would issue this challenge to those who take issue with my characterization of the Essential Public Purpose of Marriage. How would this definition exclude college roommates? Not only does this definition include nothing about children, it includes nothing even about marriage being a sexual relationship, and certainly nothing about permanence, nothing about sexual exclusivity, nothing about connecting the generations to one another.
Complain about my definition all you want. But that doesn’t solve the obvious problems with Judge Walker’s alternative. And he pretty much has to stick to that alternative or one like it, in order to claim that same sex couples and opposite sex couples are similarly situated.
The purpose of marriage as Judge Walker outlines it, is not essential: that is people can acheive all the purposes he lists without marriage (hence my example of college roommates.) Nor are these purposes public: in fact, there is no public significance at all to these purposes.
In effect, Judge Walker has replaced the essentiall public purpose of marriage with inessential private purposes.
I submit that this is not a good trade.

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  1. Leo
    August 7th, 2010 at 07:21 | #1

    Except for the word “couple” the judge’s definition could include a convent. Indeed, a convent has more permanence, sexual exclusivity, and multi-generational character.

  2. Marvin N
    August 7th, 2010 at 10:27 | #2

    Your criticism ignores the phrase about choosing “to remain committed to one another,” i.e., the presumption of permanence.

    Marriage also imposes enforceable mutual support obligations which the state relies on for its own purposes, something not true of college roommates.

    In another part of his decision the judge also deals with the issue of sexuality: nowhere is it a requirement for marriage (though either or both members of the couple may choose to make it a requirement for their own purposes).

    Your example of college roommates is simply inapt.

  3. Leo
    August 8th, 2010 at 09:17 | #3

    Judge Walker’s new definition of marriage (NDM) doesn’t include the word permanent. If it did, then he would have to prohibit divorce or make it very difficult, thus changing divorce law throughout the country. He doesn’t want to go there. He doesn’t define commitment, and I deny that the NDM requires that commitment to be permanent. Employment law and contract law impose enforceable obligations without any presumption of permanency. In any event, we all know people whose marriage lasted less than four years of college or even a single college term.

    The NDM apparently does require living together. College roommates to live together, but I know married couples who live apart, sometimes by choice, sometimes by necessity. .

    The NDM apparently does require couples. It is not clear that these couples have to be exclusive. The issue here is multiple partners. If there is no requirement of exclusivity, then there is no limitation on multiple partners (cf. contract law).

    The NDM apparently does require that the motive for marriage is “feelings about one another,” which strikes me as unconstitutionally vague.

    The NDM does require economic partnership and material support, but what that entails is not spelled out. What are the limits of the material support obligation? Are joint bank accounts required? I doubt that is what the NDM means. So college roommates might or might not be married, depending on the extent of their economic relationship. If they pool their funds and buy their meals together, they increasingly look like they are, in fact, married.

    So it looks like the NDM is really about monetary obligations, but those obligations are never spelled out and apparently are the province of the political branches, which could easily minimize them (cf. contract and employment law).

    The most important thing about the NDM, however, is that if upheld, the NDM is not only constitutionally permitted; it would be the constitutionally mandated definition of marriage.

  4. Marvin N
    August 8th, 2010 at 17:02 | #4


    The essence of “remaining committed to one another,” does, indeed imply permanence. You’re playing word games.

    Judge walker’s definition of marriage relies on existing statutes, as written.

    If you have quibbles about those statutes, so be it. But your objections aren’t really about anything “new” in Judge Walker’s decision.

    It is certainly true that spouse have considerable ability to structure their financial agreements. However, that ability isn’t without considerable limit.

    If you have questions about the state-imposed burdens of material support obligations, look to the statutes. You can begin by looking at community property, in which each spouse is given rights to property that would otherwise belong solely to the other. Look also to rules governing garnishment, eligibility for subsidies in state basic health plans, remarriage penalties, and limits on the ability of one spouse to financially burden the other without consent.

  5. Leo
    August 8th, 2010 at 19:44 | #5

    By “permanent” you really mean “not terminated until the death of one of the parties or until one or both of the parties wishes to terminate the contract.” That doesn’t sound permanent to me. You are the one playing word games. What is the definition of “commitment” in the NDM?

    The statute in question as written and approved as a constitutional amendment and upheld by the Supreme Court of California (in the face of similar legal arguments) simply defined marriage in the following words: “Only marriage between a man and a woman is valid or recognized in California.” This reinstated ancient precedent and Proposition 22, which was passed overwhelmingly eight years previously. Ignoring centuries of precedent, the judge decided to redefine marriage, ignoring the statute, the state constitution, and the California Supreme Court and bringing in precedents that were not on point. The whole idea of same sex “marriage” is a word game, redefining the word marriage and hijacking an institution designed for entirely different purposes, the original purpose being the one advanced by Dr. J.

    As for the mutual support statutes, they can easily be minimized by the political branches or avoided by contract. There is no underlying constitutional standard that requires them to exist at all, and a pre-nuptial agreement can circumvent them. They are also generally irrelevant for college students who have no real property to share and no wages to garnish and who have access to student health plans.

    It appears you are arguing that the basic purpose of marriage is alimony.

  6. Marvin N
    August 8th, 2010 at 21:56 | #6


    Yes, indeed, one of the purposes of marriage is to meld economic fortunes. And the possibility of orderly divorce — thus protecting the equitable interests of the spouses — is certainly one of the benefits and purposes of marriage. Why you think this represents a weakness is a mystery.

    And no, you cannot undo all of the economic consequences of marriage through a pre-nuptial agreement.

    Your coulds and shoulds are irrelevant to the marriage statutes as they exist in current form.

    How you think marriage should be constructed isn’t an argument against the equal protection and due process claims by same-sex couples. They don’t want same-sex marriage, or something new — they want access to marriage as it currently exists.

    It’s really very simple, which is why extending marital access to same-sex couples requires no changes to existing law other than removing the single gateway exclusion and certainly none that has any effect whatsoever on non-gay couples.

  7. Leo
    August 10th, 2010 at 12:23 | #7

    Judge Walker has replaced the essential public purpose of marriage with inessential private economic purposes. The new purpose is essentially to create economic dyads. The public purpose is to promote economic efficiency, i.e. to delivering economic benefits to those dyads, and incidentally to assuage the feeling of those who believe the traditional definition of marriage is bigoted, irrational, and discriminatory. Whether triads will be allowed is yet to be seen, especially if allowing triads has no discernable effect on dyads. (What effect could there possibly be?) The new definition of marriage (NDM) will increasingly emphasize the economic nature of marriage at the expense of all other definitions and previous purposes (enumerated by Dr. J.). If the public purpose is essentially to create alimony benefits, marriage might become less popular in general. In any event the NDM, will not result in economic equality, which is presumably the ultimate ideal of the new economically oriented value system, since only heterosexual couples will have the burden and opportunity of natural childbirth within the marriage. Already homosexual couples prosper more than the heterosexual counterparts. The natural state of homosexual couples (as it exists) is double income, no kids. There will be many exceptions, of course, but on average the heterosexual couples, especially those with large families (more than two children per couple are necessary to maintain the species over time), will fall behind. In a search for new definitions of institutions to establish a supposed “procedural equality,” the result will be to institutionalize actual inequality as measured by economic outcomes. It will not be possible to remedy this inequality of outcomes, because it will be unconstitutional (because it is irrational and bigoted and not a proper subject for popular sovereignty) to confer any benefits solely on natural breeding pairs (NBP’s), no matter how low the birth rate falls. .

  8. Chairm
    August 13th, 2010 at 23:26 | #8

    Marvin said: “It’s really very simple, which is why extending marital access to same-sex couples requires no changes to existing law other than removing the single gateway exclusion and certainly none that has any effect whatsoever on non-gay couples.”

    Simple-minded, sure, but simple? Not so much.

    The same-sex category is far broader than your favored gay subset. So the first problem with your assertion is that “non-gay couples” includes millions of non-gay same-sex twosomes. If you expect your proposed extention to have no effect whatsoever on non-gay same-sex twosomes, then, perhaps you can point to the concurrent proposal that would make gayness mandatory for all who’d show-up for a license to SSM.

    No such proposal exists. That puts a huge hole in your assertion, right there.

    Next, you have repeated used the word “couples” as if that carried some great and obvious meaning. You do realize, of course, that any twosome can comprise a couple, right? Perhaps you meant to invoke romance or sexual behavior or sexual attraction, however, there is no proposal that would make any of that mandatory for those who’d SSM.

    According to SSM argumentation, if it is not mandatory then it cannot be considered a serious basis for limiting access.

    You have not justified limiting this “extension” to just twosomes. Not conceptually, not lawfully, not even in terms of the type of arrangement you have in mind. You can’t just depend on how things have always been done in the past — at least not according to SSM argumentation. And you wouldn’t want to run away from that pro-SSM stance now, right?

    Basically, unlike “complementarity” or “sex integration” or “sex equality” or the sexual basis for the presumption of paternity, neither “same-sex” nor “gay” is a characteristic that self-limits to the number two. Quite the contrary — empirically and in principle.

    All of that destroys the predictive value of your assertion.

    * * *

    The real issue here is not that SSM would be treated as marriage, but that marriage would be treated like SSM. That means the law — and the culture — must disregard unions of husband and wife. All such unions must be treated as if they lacked either husbands or wives.

    And if that is the case, then, the sexual basis for the conjugal relationship would be abolished. That goes for consummation, provisions for annulment, grounds for adultery, and — the big one that SSMers fight against tooth and nail — the marital presumption of paternity (the way our laws and culture expresses the significance of responsible procreation).

    The first thing to note is that this destroys your attempt to equate gay and non-gay couples. Your proposed extension would treat both as nonsexual. The second thing, of course, is that lacking a public sexual aspect, your proposed extension would obliterate the justification for the special status of marriage — and even for your own gaycentric emphasis in complaining about the man-woman basis of marriage law.

    The third thing to note is that along with this obliteration of the sexual basis and the special reason for the special status of marriage in our legal system and culture, your proposed extension would have no natural boundaries. And no rational basis for the special status much less for drawing lines that prohibit polygamous, polyandrous incestuous, and underaged marriage.

    It is simple-minded to claim that this is not any sort of effect on marriage and the people who’d enter the social institution that integrates the sexes and provides for responsible procreation. Indeed, the adverse effects will go far beyond married people — far beyond the social institution — far beyond those in future generations who might or might not marry.

    The proposed extension is arbitrary and without merit. It is based on falsehoods and a profound hostility toward our system of governance and our public discourse on policymaking. It cannot be justified on any other basis than the assertion of the supremacy of gaycentric identity politics. And civilization has learned how such an elevation of identity politics is dangerous to liberty and the well-being of people across the spectrum.

    Even those who might support the proposed extension (which is actually a dismantling rather than an extension) will be subjected to the tyranny of identity politics. That’s the experience wherever such a system has been imposed on societies — modern history is full of such examples which are closely analogous with what the agenda of gay identity politics today.

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