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

By Stewart, Monte Neil; Briggs, Jacob D. et al. | Brigham Young University Law Review, January 1, 2012 | Go to article overview

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


Stewart, Monte Neil, Briggs, Jacob D., Slater, Julie, Brigham Young University Law Review


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.