What is a man? What is a woman? Gay marriage amendments

ProfessorPlum

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Wed Nov-10-04 10:27 AM
Original message

What is a man? What is a woman? Gay marriage amendments

Edited on Wed Nov-10-04 10:36 AM by ProfessorPlum

I heard on the radio last night that the legal challenges on the 11 state ballot initiatives to limit a marriage between a "man" and a "woman" have started.

I don't know what legal arguments will be used against them, but I think they can be thrown out rather easily by pointing out that either they A) create a class of people who can never legally be married or B) necessitate the states being able to define precisely who is a man and who is a woman for every single person, and that is impossible.

Because nature is wild and varied and doesn't allow itself to be constrained by our mental constructs. There are women who have X and Y chromosomes - they are genetically male, but don't develop as men because of genetic variations that prevent expression, or detection, of testosterone, for example. Would people like that never be allowed to marry? Or would they be allowed to marry either gender? (And doesn't that present a special case for them?) Other chromosomal variants exist as well, for example, XXY men. Who could they marry? And what about transgender people? Would they be allowed to get married only before they had a sex-change operation? Or only after? And would their change of sex "invalidate" any pre-operative marriages? For that matter, would a person who had a sex-change operation be allowed to stay married to the same person? Would this "marriage protection" amendment force that couple to get divorced? There are also people who display hermaphroditic phenotypes - would they be barred from ever marrying? If not, could they marry either a man or a woman? (and if it is allowed for them, why not all people?)

The varied physical biology of the problem just scratches the surface, however, for our social definitions of "men" and "women" vary just as much. What about a person who has lived their whole life as a woman, but has the genotype and phenotype of a man? Are they allowed to marry? Whom? And vice versa - what about the cases of people like Teena Brandon/Brandon Teena, who are female, but dress and act as men. Can they, should they be stopped from marrying?

And obviously, a legal definition of men and women won't lead us into issues of being able to have children, for where does that leave all of the couples who are childless, either by choice or through a vast range of infertility conditions?

Are they going to institute genetic testing and crotch inspections for every marriage license issued? Sure, the vast majority of people in the world can be put rather effortlessly into the categories of "men" and "women", based on normal physiological development and social norms. But there are huge numbers of people who can't be categorized so easily. Lawyers will be left like the Nazis who had to put themselves through enormously twisted hoops trying to legally define what a "Jew" is. But without such language, these amendments will be legal documents that make no sense - and I can't imagine they would hold up in court. The amendment would make it such that some people would not have the right to marry anyone - and that kind of discrimination would surely not hold up in any court following any kind of equal protection under the law.