Duke_Journal_Article

http://www.manwomanmarriage.org/jrm/pdf/Duke_Journal_Article.pdf


Maggie Gallagher suggests “that the arguments in favor of gay marriage, developed over the
last thirty years, have largely stopped developing. These arguments have had a powerful impact
on public opinion, particularly legal elites, over the same period. But to these now well-worn
arguments, little new has been added in recent months or even years.” Maggie Gallagher,
(How) Will Gay Marriage Weaken Marriage as a Social Institution: A Reply to Andrew
Koppelman, 2 U. ST. THOMAS L. J. 33, 34 (2004).
9. E.g., Monte Neil Stewart & William C. Duncan,

22. SEARLE, supra note 15, at 57:
[A]s several social theorists have pointed out, institutions are not worn out by
continued use, but each use of the institution is in a sense a renewal of that
institution. Cars and shirts wear out as we use them but constant use renews and
strengthens institutions such as marriage, property, and universities. . . . [I]n terms of
the continued collective intentionality of the users, each use of the institution is a
renewed expression of the commitment of the users to the institution. Id.
23. Id. at 117:
The secret of understanding the continued existence of institutional facts is
simply that the individuals directly involved and a sufficient number of members of
the relevant community must continue to recognize and accept the existence of such
facts. . . . The moment, for example, that all or most of the members of a society
refuse to acknowledge [the social institution of] property rights, as in a revolution or
other upheaval, property rights cease to exist in that society.
24. E.g., JOSEPH RAZ, THE MORALITY OF FREEDOM 162 (1986) (“Supporting valuable forms
of life is a social rather than an individual matter. Monogamy, assuming that it is the only
morally valuable form of marriage, cannot be practised by an individual. It requires a culture
which recognizes it, and which supports it through the public’s attitude and through its formal
institutions.”); Gallagher, supra note 8, at 51 (“Laws do more than incentivize or punish ….
They educate directly and indirectly.”); Cass R. Sunstein, Foreword: Leaving Things Undecided,
110 HARV. L. REV. 4, 69–71 (1996); Minister of Public Health v. Fourie, CCT 60/04, slip op. at
para. 138 (S. Afr. Const. Ct Dec. 1, 2005), available at
http://www.constitutionalcourt.org.za/uhtbin/hyperion-image/J-CCT60-04) (“The law is … a
great teacher [and] establishes public norms ….”).
25. Regarding the reinforcing function, Joseph Raz observes:

197. Cere, supra note 10, at 12-20; Stewart, supra note 6, at 95-96.
198. See Lewis, 875 A.2d at 275-76 (J. Parrillo, concurring) (arguing that the close personal
relationship model improperly ignores the full gamut of what man/woman marriage is about).
199. Stewart, supra note 6, at 97 (“Language in [EGALE, Halpern, and Goodridge] suggests
… that the courts deciding those case have consciously accepted the arguments of the close
personal relationship theorists.”). See Hernandez v. Robles, Index No. 103434/04, 2005 NY Slip
Op 09436 (N.Y. App. Div. Dec. 8, 2005), available at http://www.courts.state.ny.us/
reporter/3dseries/2005/2005_09436.htm, where the majority, in rejecting a state constitutional
claim to genderless marriage, refused to adopt the close personal relationship model of
marriage, which “treats all intimate and dependent relations as equal,” id. at *9, while the
dissent unequivocally adopted that model, albeit with no justification other than the bare
assertion that such now constitutes a “widely held view” of marriage. Id. at *30.
200. Farrow, supra note 129, at 98–99:
To proceed at all, we need to notice that the main rights argument [equality] amounts
to a nice piece of subterfuge. Its conclusion is that marriage must be redefined. This
distracts us from the fact that marriage has already been redefined in the argument’s
very first move. That is, a new category - the “close personal adult relationship”- has
been invented to provide a framework for our understanding of marriage. Once this
framework is accepted, it follows that homosexual unions can be marriage-like and, in
that case, should qualify as marriage. If marriage is nothing but a certain form of
publicly acknowledged sexual intimacy and commitment between two persons, one to
which gender and biology and procreation are not directly relevant, why should the
two persons not be of the same sex? Would we not be discriminating against such
persons by denying to their relationship the name and benefits of marriage? And
what requires such a denial? Merely the common-law definition of marriage as the
union of a man and a woman. So let us change the definition and write into law that
marriage is a close personal relationship between adults, a union of two persons. That
will erase the discrimination and resolve the equality-rights violation. Marriage will
be open to homosexuals.
This argument is obviously circular, and viciously so. Certainly there can be
nothing wrong with saying that, if marriage is simply a union of two persons, two
persons of the same sex must not be denied a marriage licence. Nor is it necessarily
wrong (though it may be foolish) to write into law that marriage is, or rather will be,
simply a union of two persons. It is wrong, however, to claim that we must write this
new definition into law in order to avoid unconstitutional discrimination and
equality-rights violations, when in fact no such discrimination or violation is possible
until after the new definition is in place.
201. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (ruling that a class of
one treated differently from others similarly situated can be discrimination under the
Fourteenth Amendment); Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985)
(the Equal Protection Clause is "essentially a direction that all persons similarly situated should
be treated alike."); ARISTOTLE, ETHICA NICHOMACEA 1113a-13b Book V3 (W.D. Ross trans.,
Clarendon Press 1925) ("[T]hings that are alike should be treated alike, while things that are
unalike should be treated unalike in proportion to their unalikeness."); cf. Andrews v. Law
Society of British Columbia, [1989] 1 S.C.R. 143 at paras 4-21. Regarding Andrews’s conception


The Pottle decision110 merits examination because it is a "second
generation" case; the judge knew of the defects in Goodridge, Halpern
and EGALE pointed out above but, apparently believing that he
ought to reach the same result, nevertheless made an effort toward an
original harmonizing of social institutional realities with the
genderless marriage project. He failed, in ways that are instructive.
A person not trained in the law but representing himself, Pastor
Gordon Young, sought to intervene in Pottle so as to provide a voice
in favor of preserving man/woman marriage, and the court allowed a
limited intervention.111 With a remarkable grasp of the social
institutional realities, Pastor Young presented them in oral argument
and added this original metaphor (which becomes important in
understanding the court's decision): "If you have an orange and an
apple side-by-side and scoop out the inside of the orange and replace
it with the apple, you will end up with something that looks like an
orange on the outside, but in fact its fundamental essence will have
been changed. The metaphor, of course, aims to teach the different
natures of man/woman marriage and genderless marriage."112
Immediately after Pastor Young had used the metaphor, the trial
judge responded in words that merit full quote:
The metaphor you used, scooping out the orange and putting an
apple inside, and therefore changing the fundamental character,
is an intriguing one. I think what you were saying is that if you
allow same-sex couples to, if you will, come under the umbrella
of marriage, to do so you have to strip away some of the
characteristics or the incidents of marriage, as they have been
traditionally understood. Whilst that may be true, when you're
looking at marriage as a cultural or a social institution, in so far as
individuals are concerned, does it affect an opposite-sex couple
who want to marry and who want to have a marriage
relationship, if you will, in a traditional form, who subscribe to
the values of . . . the cooperation between the sexes, procreation,
and the provision of a mother and father. Would not an
expanded definition of marriage still allow those who subscribe to
the traditional notions of marriage, still to have a marriage
relationship that involves those characteristics and those
values?113
To which question Pastor Young replied that the new definition
would not result in "the old institution enhanced" but would result in

the "whole institution [being] changed radically" exactly because
"such profound characteristics are omitted from the existing
institution."114
But the trial judge apparently did not want to leave the analytical
work there. He went on to say, again in words that merit full
quotation:
People choose to enter the state of matrimony for all sorts of
reasons, and with varying intentions as to how that relationship
will develop and be conducted thereafter. Those who believe that
marriage is for promoting procreation and ensuring that children
will have an opportunity for influence by both genders in their
development, may continue to do so. In that sense, for them, the
core of the orange has not changed. On the other hand, those
who wish other benefits of marriage . . . may want to avail of the
relationship of marriage for those other characteristics that are
associated with it.115
He then asserted that the fundamental differences between the
genderless marriage institution and the man/woman marriage
institution "should not, in principle, matter."116 With that, the trial
judge finally concluded that he preferred "not the metaphor of the
apple inside the orange, but one instead of the apple and the orange
co-existing side-by-side, under the umbrella of equality."117
The trial court's analysis, I suggest, does not adequately come to
grips with at least four social institutional realities. The first elision is
a common one in the popular debate, a shift from the macro to the
micro. Genderless marriage proponents often deploy the language of
autonomous individuality. By that, I mean a discourse focused solely
on individuals qua individuals, or couples qua couples, with no
reference to their social context or to institutional realities. An
example of this is actually an effective political tactic deployed by
genderless marriage proponents. The tactic is to ask, "How can
letting me and my [same-sex] partner marry in any way hurt your
marriage?" Or, "How is Jim and John marrying going to have any
effect on yours and your husband's relationship." By its very
language, this question forces the issue into the micro framework,
that is, it requires that the marriage issue be decided on the basis of
benefits and harms to specific individuals or couples, as in "me and
my partner" or "you and your husband." And by that same language,
the question precludes consideration of the marriage issue in the
macro framework, that is, the framework provided by social
institutional studies. Moreover, it is precisely because of this
"forcing" mechanism that the question is so often an effective
political tactic. After all, not many lay people (besides the rare Pastor
Young) are prepared to respond by saying, "Well, if Jim and John
marry, that means that our society will have changed a core
constitutive meaning of the vital social institution of marriage from
the union of a man and a woman to the union of any two persons.
With that radical change, the old institution will disappear and
therefore, necessarily, its invaluable social goods will disappear.
Those social goods have meant a great deal to my forebears and their
society and to me and my society and I want my posterity to have
those social goods down through their generations, because I don't
think they can have a good society without them."
Nor, it seems to me, can the macro-to-micro shift be justified by
the assertion that the constitutional rights at play, whether of equality
or liberty, are individual rights and that therefore the legal analysis
must operate at the micro level. Although the relevant equality and

liberty rights are indeed individual (or personal) rights, the social
institutional argument is not advanced to counter abstract notions of
equality, liberty, or dignity but rather to give a clear understanding of
the scope and power of the societal (and hence governmental)
interests at stake in the decision to preserve or jettison the social
institution of man/woman marriage. That understanding matters
very much – unless a court is prepared to hold that genderless
marriage is an imperative of some absolute right, whether of equality
or liberty. At some point any rational equality or liberty
jurisprudence must, to retain its rationality, give important societal
interests their due. The equality and liberty jurisprudence of the
federal judiciary and of each state judiciary do that.118 Certainly a
rational constitutional jurisprudence requires, even demands, a cleareyed
understanding and fair measurement of the societal interests at
stake in each case invoking personal constitutional rights, and, in the
marriage cases, that is what the social institutional argument
provides. The macro-to-micro shift is a mechanism to obscure that
liberty rights are indeed individual (or personal) rights, the social
institutional argument is not advanced to counter abstract notions of
equality, liberty, or dignity but rather to give a clear understanding of
the scope and power of the societal (and hence governmental)
interests at stake in the decision to preserve or jettison the social
institution of man/woman marriage. That understanding matters
very much – unless a court is prepared to hold that genderless
marriage is an imperative of some absolute right, whether of equality
or liberty. At some point any rational equality or liberty
jurisprudence must, to retain its rationality, give important societal
interests their due. The equality and liberty jurisprudence of the
federal judiciary and of each state judiciary do that.118 Certainly a
rational constitutional jurisprudence requires, even demands, a cleareyed
understanding and fair measurement of the societal interests at
stake in each case invoking personal constitutional rights, and, in the
marriage cases, that is what the social institutional argument
provides. The macro-to-micro shift is a mechanism to obscure that
understanding and thereby preclude that fair measurement.

The Pottle trial judge rather expressly made the shift from macro
to micro. "Whilst that [the macro social institutional argument] may
be true, when you're looking at marriage as a cultural or a social
institution, [shift to micro] in so far as individuals are concerned,
does it affect an opposite-sex couple who want to marry and who
want to have a marriage relationship . . .."119 This macro-to-micro
shift elides, of course, the fundamental understanding that marriage
is a social institution and that marriage therefore cannot be rationally
or intelligently considered politically (in the broadest sense of the
word) except on the basis of that understanding. The trial court
could not get to where it seemingly wanted to go on the basis of that
understanding; the court therefore simply shifted the discourse away
from that macro understanding to the micro world of autonomous
individuality. Confronted with the macro understanding, the trial
court could not rationally deny the profound societal effects of the
redefinition of marriage, but by shifting to the micro perspective, the
court could comfortably ignore them.
The Pottle trial judge also appears to have slipped into an elision
present in Halpern and Goodridge and discussed above, an avoidance
of the reality that an individual or even small groups of individuals,
by their life choices and conduct, can neither sustain nor alter nor
unmake a vast social institution. A common and further component
of this elision is the notion that ubiquitous variety in individuals'
marriage customs, perceptions, and conduct somehow means that
the whole institution is up for grabs. That the judge was laboring
under this notion is suggested by this language from the bench:
"People choose to enter the state of matrimony for all sorts of




referencing the social institutional argument. The court's opinion
expressly mentioned that argument twice, once in the "Justification"
section130 and once in the "Remedy" section.131
In the former section, a less than careful reading of the opinion's
key paragraph may lead to the belief that the court rejected the social
institutional argument.132 The key language is this: "Granting access
to same-sex couples would in no way attenuate the capacity of
heterosexual couples to marry in the form they wished and according
to the tenets of their religion." But this assertion may or may not
constitute a rejection (by elision) of the social institutional argument.
It does not if what same-sex couples are granted "access" to is a legal
arrangement that does not operate to redefine marriage, and the
court may well have been contemplating such a possibility because
the immediately preceding sentence speaks of "enabling same-sex
couples to enjoy the status and benefits coupled with responsibilities
that marriage law affords to heterosexual couples."133 If the court
were contemplating the redefinition of marriage as the only possible
outcome to its equality analysis, that language would almost certainly
have been instead the more concise, direct "enabling same-sex
couples to marry." Thus, it would seem that the key to what the court
was contemplating in this regard is to be found in the opinion's
"Remedy" section, and a few paragraphs later I examine that section
to see what light it sheds on the question of the court's intent relative
to the deinstitutionalization of man/woman marriage.
But returning to the "granting access" sentence, that language

does constitute a rejection (by elision) of the social institutional
argument if the opinion is mandating the redefinition of marriage
prerequisite to same-sex couples having "access" to marriage. Under
this reading, the opinion is not an engagement with the social
institutional argument but an elision of it; the bald assertion, the ipse
dixit, that the redefinition of marriage "would in no way attenuate
the capacity of heterosexual couples to marry in the form they wished
and according to the tenets of their religion" is without question a
macro to micro shift because (under this reading), by speaking of
heterosexual couples qua heterosexual couples and only in that way,
the opinion is evading social context and thus social institutional
realities.
Under this reading, the opinion must further be seen as adopting
the discredited "no-downside" argument.134 The classic statement of
that argument goes something like this: "[R]ecognizing same-sex
unions will not be likely to deter any heterosexual person from
marrying or having children."135 This language suggests, and no
doubt intends to, that all the goods of man/woman marriage will still
be available post-redefinition because men and women will continue
to marry each other at an undiminished rate. But this suggestion
misses the point. The point is what the straight men and women will
be marrying "into." They will be marrying into a much different
social institution than their parents married into simply because,
undeniably, a constitutive core meaning will be radically different.
And it is not state-sanctioned opposite-sex coupling that produces
This realization of what opposite-sex couples will be marrying
into illuminates a further inadequacy of the "no-downside"
argument. Social institutions are renewed and strengthened by use
consistent with the shared public meanings constituting them.
"[E]ach use of the institution is in a sense a renewal of that
institution. Cars and shirts wear out as we use them but constant use
renews and strengthens institutions such as marriage. . . ."136 After
redefinition, every use of the new institution by a man/woman
couple will validate and reinforce it; after all, that couple will be
invoking on their union the sanctioning power of a polity that
rigorously views their union as one between "two persons." Because
those "two persons" happen to be a man and a woman, the
consequences may initially be misunderstood by many or even most,
but the strengthening effect on the new institution is largely
unavoidable.137 Thus the argument—"just as many straight men and
women will marry"— actually cuts against, not in favor of, genderless
marriage once the social institutional realities are given their due.
Regarding the two possible readings of the Fourie opinion's

treatment of the social institutional argument in its "Justification"
section, I believe that the more accurate reading clears the court of
suspicion that it both elided that argument with the macro to micro
shift and adopted the discredited "no-downside" argument. Analysis
of the "Remedy" section provides strong support for that belief, and
that analysis follows.