"As an initial matter, defendants and amici have overstated their argument. Throughout history, the most 'traditional' form of marriage has not been between one man and one woman, but between one man and multiple women, which presumably is not a tradition that defendants and amici would like to continue," Crabb wrote in her opinion.If this is truly what the defendants said, then she may have a limited point. If they argued what she claims they argued, then a problem has been found in their argument.
The number of years before Christ (B.C.) out-number those after his presence here on Earth (A.D.) -- and for the majority of the time before he came, monogamy was, indeed, not the sole tradition. But, is marriage a tradition at all, or has it always existed as a unique male-female institution since its inception?
She does not appear to address the quote she made below later in her later in her remarks in this article.
"In defending their same-sex marriage ban, state officials claimed that "virtually all cultures through time" have recognized marriage "as the union of an opposite-sex couple."In her dismissing their argument, she does not address the following:
If marriage did indeed begin as an opposite-sex union, and so it has always been recognized in virtually all cultures, then, 'that' is what it is. It is an opposite-sex union. And as such, and due to the potential repercussions of changing it to same-sex, does it too deserve Constitutional protection?
As it turns out, having been labeled now by western Culture as a "tradition" it is considered to be subject to be made-over in any way the culture comes to a consensus on.
"Like moral disapproval, tradition alone proves nothing more than a state's desire to prohibit particular conduct," she wrote, citing Justice Antonin Scalia's dissent in a 2003 sodomy case, which stated that "'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples."Wait a minute, "tradition alone proves nothing more than a state's desire to prohibit particular conduct,"? It happens that, "nothing more than a state's desire to prohibit particular conduct," is one of the basic principles of government. She speaks as though it is somehow out of place for a government to prohibit particular conduct (same-sex marriage). There are tens of thousands (guess) of governmental laws prohibiting particular conduct.
Marriage did not begin as a tradition (by anyone's definition), it just simply began. Men and women came together and formed a unique formal bond. Marriage is least of all a tradition; it is an original union between the opposite sexes -- because they were opposite sexes. It did not start out as a tradition, but an original condition. Granted, it is vulnerable to be labeled, regarded, and mishandled as a tradition.
But it is still a description of a once original unique phenomenon: a permanent opposite-sex union. It contains reproductive, ancestral, and other dimensions that a same-sex union cannot contain. A same-sex friendship/committment, on the other hand, is a beautiful, deep, and potentially permanent commitment; but if it changes, the losses are temporary, people go on their way, no record needed, no one cares, other friendships await. Regardless of what a marriage is or isn't, it contains reproductive potential with permanent genetic and historic ramifications -- past, present, and future, and therefore should be distinguished from a same-sex friendship. The two types of relationships have grounds not to be treated in the exact same way under the constitution. They consist of different entirely different systems.
Because of the legal entitlements in today's world that come with marriage, gays understandably want it. What they want most of all is to be treated like fellow human beings. They would have settled for "gay civil unions", but since they met no one who could distinguish the difference between a "marriage", and a "civil union" (night and day), they appear to need to insist on marriage.
The Constitution entitles everyone to equal protection under the law, but not equal access to everything. A male journalist cannot go in the female sports locker-room. Bathrooms will always be separated by sex as well. The U.S. Constitution does not claim that everything is equal in this world, it simply claims that all people will have equal opportunity to exist under it. There are inherent differences between some things. The Constitution, attempting to make all things protected, does not assert they are all the same, nor equal, but simply equally protected in a context of life, liberty, and the pursuit of happiness. In Algebra, everything is not equal, or I would have gotten a much better grade. Male does not equal female. They are not the same. Therefore, marriage (opposite-sex union) and same-sex union are not equal, nor the same; they are simply equally entitled to exist, as different entities. They each have their own place, even protection, under the Constitution. The Constitution upholds many unique principles, as well as unique institutions. Can it uphold the difference between a marriage and a gay civil union, Judge Crabb? I would say so. But apparently, first someone is going to have to come forward and point out the an essential distinction between the two. As far as I can see, this has not been done.