iSoul In the beginning is reality.

The legal fiction of same-sex marriage

Now that the U.S. Supreme Court has invented a right to marriage that extends (so far) to any two non-married adults, many articles have been written criticizing the Court. Some have called same-sex marriage a legal fiction, apparently using that as a simple pejorative rather than a legal term. I’m not a lawyer but I think legal fiction is an accurate term to use.

It is well-known that corporations can be treated as persons by the law; this is a legal fiction that ensures that groups of people are treated similarly to individuals. It is fiction because a corporation is not literally a person and so should be treated as a person only in limited ways. That applies to same-sex marriage, too.

Same-sex marriage is not literally marriage. No law or interpretation of law can change the reality of marriage, which is only for opposite sexes. But laws or interpretations of law can create legal fictions in which something that is not literally true is treated as if it were true in limited ways. That is what the Court has done.

The question now is what are the ways that same-sex marriage is like real marriage and what are the ways it is not. Unfortunately the Court did not specify this or even acknowledge the issue. They left that for the future.

This ensures a turbulent time for the U.S. while those who want to maximize the treatment of same-sex marriage as real marriage will battle with those who want to minimize it. The dissenting justices were right to point out how this could have been avoided by letting the democratic process deal with the whole matter.

But the Court short-circuited the democratic process and inserted their judgment for the judgment of the people. That is a defeat for democracy. And it undermines respect for the judicial branch of government.

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