When you go out for brunch, there’s a good chance the ketchup you slather on your mushroom omelet is married. Anyone, such as myself, unfortunate enough to ever have toiled in restaurants is intimately familiar with the server sidework known as “marrying” the ketchup, i.e., pouring the contents of one partially filled ketchup bottle into another partially filled ketchup bottle and repeating the process until one ends up with a bunch of brimful bottles and can toss the empty ones. Everything in a dining establishment should always be filled to the top, the rationale being that the trusting customer will erroneously associate filled with new and fresh. So unless the ketchup bottle your waiter brings you is factory-sealed, be aware its contents may have been married more often than Liza Minelli and some of the red stuff you are about to consume most likely dates back to the Nixon years.
Let’s say the state of Connecticut passes a law outlawing ketchup marriage: henceforth, combining the contents of one half-empty ketchup bottle with those of another shall be illegal in the Nutmeg State. While this may be an “uncommonly silly law” (as Justice Potter Stewart once described another Connecticut statute that outlawed the sale of contraceptives), the question is, is it unconstitutional such that the Supreme Court could overturn on equal protection grounds this democratically enacted piece of legislation?
Since marriage itself would remain legal in Connecticut and the laws of the land must apply equally to all, how could it be constitutional to permit marriage for some but not others solely based on who or what they are? What if the law were to ban marriage between Heinz and Heinz but not between Heinz and Hunt’s? And even if it applied to ketchup across the board, marrying ketchup with mustard or mustard with apple sauce would still be allowed.
The short answer, of course, is that the Equal Protection Clause of the Fourteenth Amendment applies to any person, and bestowing personhood upon condiments would be taking semantic elasticity a trifle too far.
More pertinent to this discussion: although we are free to informally term “marriage” any type of alliance we desire—waiters can put little golden rings on the ketchup bottles in their charge and whistle Mendelssohn’s Wedding March while doing sidework if it makes them happy—, in a civilized society the Equal Protection Clause cannot possibly—and hence does not—indiscriminately enshrine as a fundamental right every kind of union that anyone may choose to call a “marriage” even if such joinder involves human beings only as opposed to bottled nightshades.
Socrates declared that “we cannot talk about virtue until we know what virtue itself is.” Likewise, until we know what marriage itself is, i.e., until —absent a constitutional amendment to spell it out unequivocally—we figure out a way to determine with at least a scintilla of objectivitywhich one out of the pool of conceivable definitions of marriage is “the one” in the sense that the prohibition of any type of union that falls within this definition is unconstitutional, we have no basis on which to argue that same-sex marriage either is or isn’t a fundamental civil right that flows logically from the cherished principle of equal protection under the law.
(1) If marriage means the union of exactly two consenting adults unrelated by blood, then prohibiting two such individuals from entering the bonds of matrimony on grounds that they are of the same sex is unconstitutional.
(2) If marriage means the union of exactly one adult male and one adult female, both consenting and unrelated by blood, then same-sex unions simply don’t fall under the definition of marriage to begin with, and there exists no equal protection violation if two individuals of the same sex are barred from “marrying” each other, as no one is barred from doing that which is defined as “to marry.”
Which of these two definitions does equality under the Constitution imply?
Remember, you can call a marriage anything you want (such as your professional relationship with your accountant, your personal relationship with your hamster, or pouring ketchup from one bottle into another), but that doesn’t automatically elevate it to a definition in the constitutionally protected sense— calling something a marriage doesn’t make it a marriage.
The inherent difficulty here lies in ascertaining what something means if no universal consensus exists and its definition has never been carved in granite, a situation which serves as an open invitation for all of us to define happily away according to our druthers and then rustle up some cogent-sounding rationalization afterwards.
So what’s wrong with simply arguing that marriage means—and has meant all along—the union of two consenting adults as opposed to the union of one man and one woman, in which case there would be no need for a constitutional amendment, for why bother to set down on parchment a right that already exists under Equal Protection anyway?
What’s wrong with that argument is that it holds no logical water and rests on nothing save personal preference.
You may, and probably will, counter that the one-man-one-woman definition of marriage is equally arbitrary and anchored solely in personal preference and that arguing otherwise indicates ADHP (= advanced delusional homophobia); besides, if marriage were up to the majority to define, outlawing miscegenation would be constitutional after all, Loving v. Virginia notwithstanding. The major flaw in this rebuttal is that the one-man-one-woman definition is far less arbitrary than its more inclusive alternative, and to suggest that the Constitution implicitly sets forth the more arbitrary of two arbitrary definitions of marriage makes no sense whatsoever.
Marriage dates back to the dawn of civilization; the world has seen untold matrimonial varieties, from couples to polygamy to marrying children to all manner of incestuous unions. The minutiae aside, marriage has always been restricted to human beings only, although I can’t say for sure there has never existed a society where a farmer could marry his goat; but if so, the phenomenon would have been akin to what in broadcasting is known as a “scratch,” i.e., a program with too tiny an audience to establish meaningful ratings for it, such as the Juggling Monkey Show on the local Banana Channel at 3am.
Besides having traditionally restricted to humans, the only other sweeping feature of marriage throughout history has been the merging of male and female, whatever the exact number of spouses, their age, blood relations, or ethnicities may have been.
So based on history and tradition, marriage is, first and foremost, a societally sanctioned union of human male and human female. Of course, the mere fact that something has always been a certain way is a poor justification for maintaining the status quo, or else slavery should never have been abolished and women should never have been admitted to the polls. Agreed. Trouble is, the moment we throw the so-called “traditional definition of marriage” under the Greyhound, we’re left with literally nothing that could serve as a foundation to determine what marriage is in the sense of being protected by the Equal Protection Clause. So then, if I insisted that the state of New York had no constitutional right to prohibit me from marrying myself, based on what could anyone argue that a union with oneself is not a “marriage”? Except in the annals of tradition, where might it be written that autosexual marriage is not covered by the Equal Protection Clause? Nowhere. Without tradition, all we have is an m, and a, and r, another r, an i, one more a, a g, and an e.
If someone frowns at the mention of the phrase “traditional definition of marriage” on account of its hidebound and conservative connotations and chides you for getting too hung up over lowly semantics, simply state that you wish to marry a dolphin and watch how fast that person will invoke the traditional definition of marriage to make the case that marrying a dolphin isn’t a “marriage.”
Bottom line, in order to figure out what exactly the Constitution protects with respect to matrimony, (a) we need a definition of marriage, and (b) this constitutionally protected definition of marriage must necessarily be derived from tradition lest we end up in a free-fire zone where everyone can make up their own definition (e.g., “marriage is the union of at least two but no more than four consenting adults”), which essentially amounts to having no definition at all.
Curiously, those who argue the U.S. Constitution implicitly recognizes marriage as “the union of two consenting adults” invoke tradition (hence “two”) yet blithely jettison the most traditional aspect of marriage (= the union of male and female) while trying to retain the lesser tradition of “two” as in “two people.” How does this make sense?
Well, it doesn’t. Either the Equal Protection Clause protects marriage as traditionally defined, i.e., male plus female, or it does not protect marriage as traditionally defined, in which case we’re living in Everything-Goes Land where I can marry myself and Helen DeGeneres can marry the Kardashians. In Everything-Goes Land, marriage could be outlawed altogether, but as long as it is legal, no one can be banned from doing whatever he or she chooses to define as “to marry,” including to marry an indicted ham sandwich and enjoy all the benefits that come with such a status. That’s what happens when you fling tradition out the window altogether—all you have is an m, and a, etc.
But if you decide to go with tradition after all, you can’t arbitrarily wrap yourself around the number “two” because that’s the part of the tradition you happen to like and discard the traditional elephant in the room. I fail to see the logic in arguing that the Constitution, via its penumbras and emanations, defines marriage only in terms of the lesser but not the larger of its two most traditional aspects. Ultimately, all definitions of marriage are arbitrary to some degree. But according to what kind of inverted logic does one get to pick a more arbitrary version over a less arbitrary version and declare that that’s what the Constitution says?
Unless one applies a fairly chaotic interpretive methodology aimed at compelling a desired conclusion, there cannot possibly exist a constitutionally protected civil right to gay marriage. Thus, for better or worse, the issue rests with the majority and its dreaded tyranny, i.e., the democratic process applies when it comes to expanding the traditional definition of marriage so as to include same-sex unions.
In my introductory paragraph, I discussed ketchup in restaurants. What goes for the ketchup also goes for the olive oil in that cute little glass bottle on your table.
It’s been married. Many times.
Enjoy your meal.