NOM BLOG

Hadley Arkes: Judge Walker and the Language of Law

 

Prof. Hadley Arkes, the Ney Professor of Jurisprudence at Amherst College on the intellectual absurdity of saying, as Judge Walker ruled, that  same-sex and opposite-sex couples are identical:

Archeologists of the law may one day come upon these words: “Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law.” Now imagine recasting the sentence in this way: “Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to beget children.” The first line was written by federal Judge Vaughn Walker in San Francisco as he struck down the constitutional amendment passed by the voters of California, a move to restore the traditional understanding of marriage as a legal relation of a man and a woman.  Judge Walker’s argument made sense only if the notion of begetting was conspicuously removed from the very meaning and purpose of marriage. Surely, marriage is not necessary for love: There is genuine love between grandparents and grandchildren, brothers and sisters, and in the nature of things they cannot be lesser loves because they are not attended by penetration and expressed in marriage.

Marriage is not necessary for love, but the law of marriage finds its deep justification as a framework for the begetting and nurturing of children." 

Read more.