Marriage arguments quibble

San Francisco florists see opportunity

I hadn't been paying much attention to the marriage equality arguments before the Supremes this week. Oh sure -- 14 states are hold-outs and many, many gays and lesbians still live with diminished legal rights as a result. And in many of the states where gays can legally get married, we can still be fired for our sexual orientation. (We also have no protection against employment discrimination under federal law. Thank the Republican Congress.) There's still a lot of legal cleanup to be won.

But full equality is on the way, court or no court. As Linda Greenhouse says "reality has outpaced doctrine, and the court’s only role is to catch up."

When I do glance through the coverage, I can still be surprised by inane commentary coming from supposedly informed sources. In particular this, from Jeffery Toobin:

Justice Anthony Kennedy gave voice to an issue of real concern when he mused, toward the beginning of the argument, about just how quickly the country was changing, and about the part the Supreme Court should play. “One of the problems is, when you think about these cases and the word that keeps coming back to me, in this case, is ‘millennia.’ ” By that, Kennedy meant that the definition of marriage as the union of one man and one woman has been around for thousands of years. “This definition has been with us for millennia. And it’s very difficult for the Court to say, ‘Oh, well, we know better.’ ”

What Kennedy is saying -- and what Toobin passes on without correction -- is simply hogwash.

"Marriage" in the form Kennedy seems to be thinking about is maybe a couple of hundred years old. If that. Heterosexual pair bonds have obviously existed as long as there have been humans. We have ancestors. But these people organized themselves in all sorts of arrangements because "marriage" is a construct that people use to regulate kinship, economic and cultural relationships. In Kennedy's "millennia," "marriage" has frequently served dominant males to establish paternity and power -- and had little to do with either exclusive pair bonding or the wants of individual participants (especially female individuals.) Among the working strata of most human societies (and that's just about everyone) "marriage" has been a productive economic unit within which people toiled in separate (and usually unequal) spheres.

The cozy couples of Kennedy's imagination are mostly a modern western European invention. It's very human of us that we are inventing some additional forms.