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Abstract

The highest courts in California, Connecticut, and Iowa recently held that the constitutional norm of equality requires the redefinition of marriage from “the union of a man and a woman” to “the union of any two persons.” The argument leading to that holding, like all arguments, proceeds from premises that the argument does not prove but that serve as the starting point for reasoning. Those premises range from the nature of contemporary American marriage to the equivalence of the pre- and post-redefinition marriage institutions, to the social costs, if any, resulting from redefinition, and to marriage’s relationship with other social institutions such as law and religion. This Article critically examines the common fundamental premises underlying the California, Connecticut, and Iowa opinions. That critical examination leads to serious questions regarding those premises’ validity. Indeed, that examination demonstrates their falsity. At the same time, it clarifies their materiality; that is, it shows that, but for the cases’ fundamental premises, no line of judicial reasoning can lead to their holding

Rights

© 2011 Monte Neil Stewart and BYU Law Review.


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