Any inquiry aimed at discovering the nature of marriage must ultimately arrive at one of two conclusions: Either marriage is something with an absolute nature ordained by God and thus unchangeable or it is an artificial thing, created by human beings on their own authority, and thus changeable according to the whims of whatever members of the human race happen to gain the political power needed to define it for the rest of the species.
If the first conclusion is correct, the rules of marriage are as inflexible as the rules of mathematics. Just as 1 plus 1 always equals 2, so must marriage always equal the union of one man and one woman.
If the second conclusion is correct, there are no limits at all on what "marriage" could mean.
In the 2008 election, 52 percent of California voters embraced the first conclusion. They approved Proposition 8, an amendment to the state constitution that says marriage is the union of one man and one woman.
After the election, a group called the American Foundation for Equal Rights filed suit in federal court aiming to overturn Proposition 8 on behalf of one homosexual couple and one lesbian couple who want to marry. In its suit, which went to trial in California this week, the group embraced the second conclusion about the nature of marriage. They presented their argument in a brief signed by Theodore Olson, former solicitor general for President George W. Bush, and David Boies, who represented then-Vice President Al Gore in the fight over Florida's vote count in the 2000 presidential election.
These lawyers are asking the court to recognize that marriage is not a "static institution" but one that changes and will continue changing as part of an "evolving society."
"Moreover, the evidence at trial will show that there is no such thing as 'traditional marriage,' at least as Proponents use that phrase, because marriage historically has not been a static institution," says their brief. "Rather, the legal rules defining marriage have evolved over time. Plaintiff's experts will testify that marriage has changed over time to reflect the changing needs, values and understanding of our evolving society."
Following from their assumption that marriage is a malleable institution that government can change, these lawyers argue that it violates the Equal Protection Clause of the 14th Amendment for the government to prevent two people of the same sex from marrying each other. They claim it is unjust discrimination based on sexual orientation, sex and even "defined" gender roles.
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