If you like your marriage certificate, you can keep your marriage certificate?
This post is not about “marriage equality” per se. It’s about the way “marriage equality” is implemented.
The title of this post is a parody of the point I would like to discuss, which is this: that the legal meaning ascribed to your marriage, as shown on your marriage certificate, quite possibly changes when your state implements “SSM.”
“Traditional marriage” means “marriage policy based on sex differences”
If you were married prior to the implementation of “marriage equality” in your state, consider locating your marriage certificate. Once you have it in hand, notice the words “bride” and “groom” on it. Under the “traditional” definition of marriage, a bride is a female and a groom is a male. On the day you married, a man and a woman married each other, and the state recognized the biological sex differences that were present in your marriage.
Imprecise phrases have distracted us
I have argued elsewhere that the following ways to describe the new marriage policy are inadequate:
“it’s only 3% of the population”
All of these make an implicit assumption: that there is no change marriage policy for male/female couples–no change for you and no change for the legal meaning of your marriage certificate. Those phrases suggest two policies, one for male/female couples, and one for same-sex couples. But “SSM” activists have been championing (and getting) ONE policy.
Do you know how this one policy is carried out? Most people do not. It’s carried out by way of the state becoming blind to sex differences in marriage and family law. This “blindness” is known as gender neutrality. Marriage equality = gender neutrality.
“Marriage equality” means gender neutrality… for everybody? For you?
Once “marriage equality” is implemented in your state, “gender neutrality” removes the legal understandings of biological sex differences in marriage and family law. I have searched the marriage codes in many “SSM” states, and from what I can tell:
gender neutrality can occur in more than one way, and it does not have to be explicitly stated.
I have never found any grandfathering clauses that would preserve the legal recognition of sex differences for prior marriage certificate holders.
If I am correct, this means that the legal terms, which represent your sex differences on your marriage certificate, were retroactively redefined by the state, because in the eyes of the law a “gender neutral” bride is not a female, and a “gender neutral” groom is not a male.
Under traditional marriage, the state recognizes sex differences in marriage and family law, including (but not limited to) on marriage certificates.
“Marriage equality” means that the following kinds of couples can marry: male/female, male/male, female/female. Because of this, the state turns a blind eye with respect to sex differences. Appropriate ways to describe the new policy are gender-neutral marriage, genderless marriage, and sex-neutral marriage.
Since there is one policy for all, once “marriage equality” is implemented, gender neutrality is retroactive–grandfathering clauses would have stopped this, but I don’t think any exist. This means that “gender neutrality” applies to prior marriage certificate holders as well as future marriage certificate holders.
Since brides and grooms are not gender neutral, those terms on the prior marriage certificates do not mean what they meant when those marriages took place.
Caveat: there may be some other legal principle or other subtleties at work that preserve the legal understanding of sex differences for prior marriage certificate holders. If there is such a principle, I would like to learn about it. If there is no such principle, then I have a few questions.
Is it an appropriate use of state power to redefine terms on pre-existing legal contracts without notifying the contract holders or giving them a way to opt out?
What does this do to the status of those contracts?
Do those contract holders have any recourse?
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