"Only marriage between a man and a woman is valid and recognized in California."
That is the entire text of Prop 8, which has been lauded for its brevity and its clarity, but which upon close analysis might offer an opportunity to strike it down. Aside from the misplaced modifier ("only" should come either after the word "marriage" or after "woman" for the sentence to mean what it intends it to mean), there is the more pressing question of what "man" and "woman" themselves mean. Words matter, the right wingers say (c.f. Mike Huckabee when Jon Stewart suggested recently that Prop 8 is a mere a semantic argument). If words matter, then we should define very carefully each one. And I would like to know how the State of California defines the words "man" and "woman."
I am not a lawyer, and if this argument has already been considered and rejected, I'd like to know about it. But nowhere have I seen an attempt to define what the words "man" and "woman" mean in a legal sense, certainly not in the state constitution itself. If a definition is not spelled out clearly somewhere, then I don't see how Prop 8 can stand up to legal challenge.
First, although this is a weaker argument than what follows below, let's have a look at the etymology. According to the Oxford English Dictionary, the word "man" derives from a proto-Germanic word, mannaz which meant "human" and did not denote male or female. Indeed, in its entry for "man," the OED provides the following disclaimer:
Man was considered until the 20th cent. to include women by implication, though referring primarily to males. It is now freq. understood to exclude women, and is therefore avoided by many people. In some of the quotations in this section, it is difficult or impossible to tell whether man is intended to mean ‘person’ or ‘male human being’.
It is not until the fourthdefinition in the OED that "man" distinguishes based on sex by defining it as "an adult male human being."
Although the use of the word "man" to denote all humans has fallen into disfavor over the past forty years, it is still used in this sense sometimes. Whether this more general, neuter meaning applies to the language of Prop 8 is not necessarily clear (though I'm sure its authors intended the use of the word "man" to mean "biological male," that meaning is not spelled out). Again, not being a lawyer, I do not know whether or not the intent of the language is clear enough to withstand a challenge on this basis. "Male" and "female" might have been clearer languaging, but those are not the words they chose.
But even if we accept the intended use of the words "man" and "woman" to mean "adult male human being" and "adult female human being" respectively, the definitions may still be subject to interrogation.
First, upon what criteria is the determination of "man" or "woman" made? Is it the physical characteristics? Is it the karyotype (XY or XX chromosomes)? Is it one's role in biological reproduction (i.e., the man produces sperm, the woman eggs which then gestate within her?). Is it any, all, or some combination of these? The language of Prop 8 does not make this clear, and if we examine these criteria one by one with respect to exceptions, I think we get into some ambiguities worth pursuing.
Let's look first at what is probably the default definition, that a man has an XY karyotype and the woman an XX. This is "normal." But there are thousands if not hundreds of thousands of Americans who do not fit into either of these categories. There are aneuploid karyotypes, that is, when there are extra chromosomes. There's XYY syndrome, in which a person who is phenotypically "male" (that is, looks like a man physically) gets an extra Y chromosome. There is Klinefelter's syndrome, which is the opposite, when a phenotypic male has an XXY karyotype. In these cases, there are often visible symptoms such as smaller genitalia and reduced fertility. There are several other types of chromosome anomalies resulting in a range of abnormalities. A purely karyotypic definition of sex, then, is inadequate.
What about phenotype? Is the definition of a woman a person who has female reproductive organs? What, then, of the case of intersex people, those born with both sets of genitalia? An "intersex" person cannot be easily classified as either "male" or "female." There are ongoing legal battles concerning the gender categorizations of such people, but it is clear that the words "man" and "woman" cannot easily be applied in every case. Are intersex people, those who have not chosen to be either male or female, now debarred from marriage under California law? Would an intersex person have to choose a sex before they could be allowed to marry?
More importantly, though, if one is born as a true intersex person and chooses to live either as a male or a female, which is often the case, then does that not suggest that the terms "man" and "woman" are not always biologically predetermined, but lifestyle choices? Obviously, this situation pertains only to those born with sexual abnormalities, but the wording of Prop 8 appears to make no exception for such people; by discriminating against them, the measure ought to be struck down as unconstitutional.
What about reproduction, then? Is a woman a person who may give birth and a man a person who may not? This criteria is obviously inadequate, as many, many "women" are not capable of giving birth for one reason or another. (There is the recent complication female-to-male transgendered men becoming pregnant, but I suppose one could argue that since they were born biologically female, they do not qualify as exceptions). The problem of intersex people again arises, though; some people born with an XY karyotype have become pregnant and brought a fetus to term.
For Prop 8 to succeed in doing what it intends to do, it seems that the language would have to go something along the lines of:
Only marriage between a man (defined as an adult human male with an XY karyotype and excluding those individuals born with sexual abnormalities including but not limited to aneuploid chromosomes or intersexuality) and a woman (defined as an adult human female with an XX karytoype and excluding those individuals born with sexual abnormalities including but not limited to aneuploid chromosomes intersexuality) is valid and recognized in California.
Fundamentally, I ask you linguists, lawyers and geneticists out there whether or not Prop 8 might be challenged based on its failure to define "man" and a "woman." In so doing, the measure not only denies civil rights to homosexuals, but it potentially denies civil rights to others who through no "choice" of their own exist outside the normal categories of male and female, and therefore prove the criteria on which definitions are based to be deficient.