Because a federal judge says so, Oregon’s Measure 36 on marriage now seems to be history. So much for the more than one million votes in favor of the initiative in November 2004. The measure’s demise raises some questions and once again tells us something about the law.
Measure 36 defined “marriage” in the Oregon constitution as the legal union of one man and one woman. When it was challenged in court, Attorney General Ellen Rosenblum joined the plaintiffs in seeking to have the definition declared in violation of the federal Constitution. She believes there are no rational grounds for the state’s definition.
The case reminds everyone that Law Day speakers are not telling the whole truth when they say we have a government of laws, not of men. What we actually have is a form of government in which the constitutions and laws mean only what judges say they mean. Words on paper mean very little. They can be brushed aside. This has always been so, but it’s good to be reminded now and then lest we get overconfident about various constitutional guarantees.
Now what? If marriage does not mean what the state constitution says, what does it mean? The statute on the subject had been sufficiently vague to prompt the initiative in the first place.
And if there are no rational grounds for the one-man-one-woman definition, what rational grounds are there for any other definitions, except perhaps for some kind of minimum-age requirement?
Why should the statute, for example, limit marriage to two people? Other societies with long histories have other ideas on how many people can be married to each other. Which judge is willing to decide that ours is more rational than those?
And why should there be limits on the degree of consanguinity? Since the idea of conceiving children is not a rational basis for defining marriage, then why should the state care if people closely related by blood want to marry for financial or tax reasons?
And what, by the way, gives the state the right to demand a license in order to get married? What’s the rational basis for that, considering that the expense of administering marriage licenses probably exceeds the revenue flow?
It’s obvious that tradition and custom mean nothing to the courts in cases like this. We are at their mercy, adrift without a rudder in a culture that resembles a turbulent sea. (hh)