While Judge Walker is right about one thing in his discussion of marriage, but dead-wrong about another:
Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. . . . Gender no longer forms an essential part of marriage; marriage under law is a union of equals.
“Miscegenation” laws prohibiting marriages between individuals of different races were a statutory invention. The historical (as well as literary, see, e.g., Othello) record is full of such marriages.
Sex difference, however, has always been at the core of the definition of marriage — long before governments recognized such unions. If you don’t believe me, I suggest you study the marriage rituals of any culture; you’ll find that each treats the bride and groom differently.
Or, look at the cultures which have recognized same-sex unions. They either called them something other than marriage or required that one spouse live in the guise of the opposite sex — at a time when sexual roles were far more stratified that they are today. In Native American cultures (called either berdache or Two-Spirit), that meant that in male-male unions partner not only had to dress like a woman, but perform or social roles as well.
With his opinion, one federal judge both demonstrates a cluelessness about the history of marriage and a determination to remove one of its defining aspects from its legal meaning.
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