A complaint recently filed in federal district court of the Western District of Wisconsin, seeking an order that Wisconsin license and regulate same-sex couples as marriages, lacks any attempt to define the term "marriage." Offering a clear, precise, authoritative term definition has been signally lacking from many other state and federal lawsuits across the country.
In United States v. Windsor, decided last year by the United States Supreme Court, Justice Anthony Kennedy wrote for a five justice majority:
"It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization."
Plaintiffs who filed the complaint have challenged "any and all provisions of Wisconsin's marriage statutes (Wis. Stat. ch. 765) that refer to marriage as a relationship between a "husband and wife." However, the complaint does not set forth on what basis, in what wording, or for what purpose, Wisconsin statutes chapter 765 should define marriage.
Plaintiffs do offer the general approbation, "Marriage is universally recognized and celebrated as the hallmark of a couple's love for and commitment to each other. When two people marry, they commit personally and publicly to build a life together, and they ask their families, friends, communities, and government to respect, honor, and support that commitment. Marriage has long been recognized and valued for its beneficial contribution to the welfare of society and to individual happiness."
But this paean of praise does not define what marriage actually consists of. Historically speaking, marriage in every century, millenium, and culture, has been an attempt to regulate a specific relationship between male and female that is fundamentally biological, and which pre-dates human history, laws, and constitutions.
Nothing in the complaint has addressed the possibility that same-sex couples are not recognized by marriage laws simply because this particular human tie is irrelevant to the purpose for which marriage laws were written, not because of any original intent to discriminate against the individuals who happen to choose same-sex partners.
When the Court of Appeals of the State of New York rejected a similar argument, Chief Judge Judith Kaye, writing in dissent, cited an opinion she found persuasive from a court in Ontario, Canada, "an argument that marriage is heterosexual because it 'just is' amounts to circular reasoning." Any argument that "it just is" does indeed amount to circular reasoning. But Kaye, no more than anyone else, provided any answer to the essential question, "what IS marriage?"
Presumably it is something more precise than "a substantial bundle of benefits that are desirable to obtain, and convenient legal arrangements." The substance of the complaint has no wording which clearly establishes whether a same-sex couple cannot obtain a marriage license because they do not constitute a marriage, or because they are being discriminated against despite the fact that they DO share the essential elements of marriage. But to establish either one, a definition of marriage would have to preceed coherent argument.
Among the protections which the complaint asserts are denied to same-sex couples, is "the presumption of parenthood for a non-birth parent with respect to any child born within the marriage." This vague assertion overlooks the purpose and history of presumption of parenthood.
The law has no need to establish a presumption of parenthood pertaining to women. Motherhood is established, not presumed, from the fact that a baby emerged from the mother's own body. Presumption of parenthood has applied primarily if not exclusively to men. More precisely, if a man and woman marry, the law presumes (without indulging any demeaning inquiry, and without seeking proof) that the married couple engage in sexual intercourse, are faithful to each other, and that the husband is the presumed father of any child born to the wife.
The complaint does not explain how any woman could be presumed to be the birth parent of any child born to a same-sex partner, or how a same-sex male partner would even come to give birth at all. The complaint provides no detail on how presumption of parenthood would even arise within a same-sex partnership.
While the complaint asserts that "Wisconsin's constitutional amendment barring same-sex couples from marrying not only denies loving, committed, same-sex couples the dignity and status that only marriage can confer on their relationships and their families," the complaint is silent on why and how a same-sex couple, however loving, constitutes a marriage.
The complaint states that "Wisconsin law would allow Virginia and Carol, Roy and Garth, Charvonne and Marie, and Judi and Katy to marry or have their marriages recognized here but for the fact that they are same-sex couples." Wisconsin law would as presently written allow Virginia, Carol, Roy, Garth, Charvonne, Marie, Judi, and Katy to enter into marriage at any time, without inquiring as to their sexual preference.
But none of them wish to enter into a marriage, as that term is understood by state law. Virginia wants to marry Carol, and Roy wants to marry Garth. The complaint presumes, but does not establish, that the constitution requires that Virginia and Carol, or Roy and Garth must be recognized as a marriage.
What plaintiffs contemplate by "the freedom to marry" is one of the open questions which the complaint does not attempt to answer. Plaintiff's complaint that "Wisconsin's ban on marriage for same-sex couples is a striking and continuing vestige of the long history of discrimination towards lesbians and gay men," does not cite any legislative history to sustain the premise.
In the long history of the state's marriage laws, there is from the time the state entered the union no reference until very recently to lesbians or gay men. Nor, to this day, does the law require county clerks to inquire into the sexual preference of the man and woman seeking a marriage license.
These absences reflect the persistent assumption that "couples" have constitutional rights. In fact, the Fourteenth Amendment forbids states denying to any "person" the equal protection of the laws. That persons enter into a variety of human relationships, personal, emotional, legal, economic, political, academic, social, cultural, and otherwise, which may or may not be the government's business to regulate at all, and which, if it has jurisdiction, the government may prohibit, subsidize, regulate, license, tax, or ignore, and which any given person may or may not choose to enter into, is not smothered by any requirement that all human bonds be treated alike.
The failure to define what civil marriage IS, while extolling what a benefit it is to have one, is a serious weakness in the complaint as litigation moves forward. To complain that two men, or two women, are not licensed in the same manner as a man and a woman, is akin to complaining that a profitable business is denied the benefits of registering as a non-profit organization, or that a non-profit organization is denied the benefits of turning a profit, a benefit that is available to any entity with a business license.