Marriage, Fundamental Premises, and the California, Connecticut, and Iowa Supreme Courts

Article excerpt

The highest courts in California, Connecticut, and Iowa recently held that the constitutional norm of equality requires the redefinition of marriage from "the union of a man and a woman" to "the union of any two persons." The argument leading to that holding, like all arguments, proceeds from premises that the argument does not prove but that serve as the starting point for reasoning. Those premises range from the nature of contemporary American marriage to the equivalence of the pre- and post-redefinition marriage institutions, to the social costs, if any, resulting from redefinition, and to marriage's relationship with other social institutions such as law and religion.

This Article critically examines the common fundamental premises underlying the California, Connecticut, and Iowa opinions. That critical examination leads to serious questions regarding those premises' validity. Indeed, that examination demonstrates their falsity. At the same time, it clarifies their materiality; that is, it shows that, but for the cases' fundamental premises, no line of judicial reasoning can lead to their holding.

TABLE OF CONTENTS

I. INTRODUCTION ...................................................................... 194

II. THE FIRST AND MOST CONSEQUENTIAL FUNDAMENTAL PREMISE ........................................................................... 197

A. The Narrow Description of Marriage ............................ 197

B. The Broad Description of Marriage .............................. 204

C. Comparing the Narrow and Broad Descriptions ........... 209

III. THE "NO-DOWNSIDE" ARGUMENT, LOSS OF SOCIAL GOODS, AND MORE FUNDAMENTAL PREMISES ................ 212

A. Marriage's Social Goods and the Man- Woman Meaning ..................................................................... 215

B. Loss of Social Goods .................................................... 220

1. The optimal childrearing mode .............................. 222

2. "Responsible Procreation" and a Failure of Purpose ................................................................. 226

3. The child's bonding right ....................................... 243

4. Husband and wife .................................................. 256

C. Loss of Religious Liberty as a Downside ....................... 263

IV. THE MATERIALITY OF THE FUNDAMENTAL PREMISES .......... 274

V. CONCLUSION: QUESTIONS OF INTELLECTUAL COMPETENCE AND HONESTY ........................................... 278

I. INTRODUCTION

Every argument proceeds from one or more premises that die argument does not prove. These "fundamental premises" serve as the starting point for reasoning. As every judicial opinion is an argument for a conclusion or holding, each has its own fundamental premises. That a judicial opinion's fundamental premises are unproven is not necessarily a bad thing. Where their validity is universally (or perhaps even just widely) accepted in die relevant discourse community, these fundamental premises save time by focusing attention where sensibly it ought to be, on the court's reasoning leading to its holding. Moreover, some premises are unprovable, as are their respective antitheses, and if litigation is to be the means of resolution, judicial reasoning must start somewhere in order for actual cases and controversies to be resolved.1

False or otherwise invalid fundamental premises, however, are a bad thing. When an argument employs false fundamental premises there is very high probability that die reasoning proceeding from them, no matter how logical or coherent that reasoning may be itself, will lead to false or otherwise invalid holdings, die kind of holdings diat reasonable people cannot, indeed must not, respect.

This Article critically examines fundamental premises of three particular judicial opinions addressing the marriage issue2: the California Supreme Court's majority opinion in In re Marriage Cases,3 the Connecticut Supreme Court's majority opinion in Kerrigan v. …