Biology trumps Law

Same Sex Marriage Watch

I'm breaking radio silence this morning just briefly (the class I'm teaching seems to be going well, but I haven't worked this hard since grad school!) for a quick reality check about the President's proposed "gay people are second class citizens" amendment.

Clearly the intent is to get small-minded people all worked up about how awful gay people are, and how awful it is that gay people would want to commit their lives to each other. And it may work to stir up bigoted feelings, but what else is new for these radicals?

I'm writing to assure everyone that this amendment would never, could never, be passed, and here is why: the amendment makes the federal legal definition of a marriage as a contract between one man and one woman only, which seems on the surface like a no-brainer.

But in order to write such an amendment, it would have to define what a "man" is, and what a "woman" is. And there, legality would break itself upon the rocks of nature. For 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 anyone? (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, the 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, the amendment will hardly be a legal document that makes any sense - and it certainly would not 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.

The prohibitions that now remain against same sex marriages are vestigial, and only stand now because they haven't really come under any kind of scrutiny - but once this dialog begins, they will have to be swept away because clearly there are no definitions apart those bordering on the ridiculous which everyone could agree define a "man" and a "woman".

So, just a word of encouragement for people all over this country who share their love with each other, no matter where they fall in nature's wonderful spectrum - falling back on this hatred is a predictable move for this administration which has NOTHING else to run on. But even so, this effort will fail. Only a few years ago, marriages of mixed race were also illegal in many parts of the country.