Alan K. Henderson's Weblog


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Tuesday, August 10, 2010

Perry v Schwarzenegger

California Proposition 8 bars the state government from a specific activity (redefining marriage). The law is unconstitutional if the state is obligated to engage in said activity. The law is perfectly constitutional if a) the state is not obligated to engage in said activity, or b) the state has no authority to engage in such activity in the first place. Criterion b) is sufficient to legally uphold Prop 8.

Marriage is a legal and cultural institution as old as civilization. Same-sex "marriage" (SSM) is a concept born some time between Raiders of the Lost Ark and Sex and the City. Judge Vaughn Walker ruled that they're both the same thing. He's not allowed to do that, for at least two reasons: the government owns neither marriage nor the common language.

Society at large owns the institution of marriage. Government has been granted some jurisdiction over it, but it has no ownership. It is not even a custodian, any more than OSHA is custodian over businesses - and OSHA has far, far more authority over its charges than the law has over marriage.

The common language descends from the consent of private individuals, and thus belongs to society, not to government or any other sect.

To name someone or something with the expectation that that name be formally recognized by society is an act of authority over that someone or something. Parents name their children; society accepts those names, hospitals and courthouses record those names in their records.

Government may name only that which it owns, and thus has no jurisdiction over the definition of marriage or any other institution it does not own.

Over at the Volokh Conspiracy I posed the state-authority-over-language argument. Martinned countered by noting that the US Code is "chock full of definitions" - missing the point of who originates language. My response:

The US Code does not change existing concepts. It contains a dictionary of terms; many of these the government uses in the same context as the general population does, some are coined to define specific concepts. “Discovery” in the legal sense is in no way confused with any other concepts we call by that name.

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