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"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.

Originally posted to Crypsis on Sat Dec 20, 2008 at 03:05 PM PST.

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Comment Preferences

    •  So does the phrase "only marriage between... (10+ / 0-)

      a man and a woman is valid in the state of CA." mean that there can be no legally binding agreements or contracts between a man and a woman other than marriage?

      I have long wondered, even diaried and commented on (mostly) the inter-sex cases. In those cases, the Doctor will use one of several criteria to "arbitrarily assign" sex. The assigned sex is dependent on the criteria used, so the assignment truly is arbitrary.

      The case becomes an issue, if the orientation of inter-sexed is not heterosexual with respect to the assignment. The mind boggles. UNLESS WE REALIZE... Marriage is a Secular and Civil Right.

      Support Marriage Equality

      Hope. Peace. Integrity.

      by Random Excess on Sat Dec 20, 2008 at 03:19:13 PM PST

      [ Parent ]

      •  Right. (3+ / 0-)
        Recommended by:
        snakelass, kaliope, debedb

        The misplacement of the modifier, only, denotes that California will recognize only marriage as a legitimate agreement or contract.

        If the doctor assigns a sex, what are the criteria the doctors use, and are they in any way standardized?

        Ironic points of light flash out/Wherever the Just exchange their messages. -W.H. Auden

        by Crypsis on Sat Dec 20, 2008 at 03:32:14 PM PST

        [ Parent ]

        •  There are a standard set they choose from... (2+ / 0-)
          Recommended by:
          snakelass, kaliope

          but different doctors will choose different standards, thus yield different results. In close cases, Doctors usually think it is easier to assign female, and may actually perform some "assignment surgery".

          With no gender expression, orientation, or identity, these inter-sexed children have to work extra hard to be accepting of themselves. They have no role models, this is true for the GLBTQ community as a whole, but it much more pronounced in the inter-sex case.

          I have no links off the top of my head, I would guess wikipedia is a good place to start to get citations.

          Support Marriage Equality

          Hope. Peace. Integrity.

          by Random Excess on Sat Dec 20, 2008 at 03:44:02 PM PST

          [ Parent ]

      •  usually it goes something like this: (2+ / 0-)
        Recommended by:
        snakelass, Marja E

        Will the person have a typical penis or not?  If yes, assign male.  If no, assign female.  

        And the usual reason for that has to do with "social factors related to the locker room."  As in, the cultural prejudices about the sizes and shapes of penises.  "Oh look!  He's got a teeny weeny!"  IMHO that's sexual harassment.  And it has no place in the culture or in the law.  

        As a Marine Corps member here said once, paraphrasing, "I don't care who you're attracted to, just don't stare at me in the shower."  

        We even see it around here when we say that this or that politician needs to "grow a pair," meaning, a pair of testicles.  (I prefer "grow a spine")

        Since when did a testicle test become part of the criteria for public service, eh?

    •  XX..XY..XXX.. (1+ / 0-)
      Recommended by:
      G2geek

      "Better a little late, than a little never"..Julian Winston

      by Johnny Rapture on Sat Dec 20, 2008 at 03:34:25 PM PST

      [ Parent ]

  •  Good Question. Lemme Check... (6+ / 0-)

    Uh... I'm a woman. You have a problem with that?

  •  heh... (5+ / 0-)

    ...this is an oldie.  I think you'll find it fractures by state, with places like Texas tending more to the essentialist and places like California less so (but few absolutes).   Judges don't seem to have a problem with digging up the essentialist definitions, if that's what they want to defend.

    Incidentally, all you have to do is drive it by gender identified at birth, if you want a really nasty essentialist framework.  

    ...j'ai découvert que tout le malheur des hommes vient d'une seule chose, qui est de ne savoir pas demeurer en repos dans une chambre.

    by jessical on Sat Dec 20, 2008 at 03:16:39 PM PST

    •  That is nasty (4+ / 0-)
      Recommended by:
      snakelass, G2geek, jessical, Marja E

      And old though this conundrum might be, doesn't it provide at least a basis for challenging what is obviously an assault on all civil rights?

      Ironic points of light flash out/Wherever the Just exchange their messages. -W.H. Auden

      by Crypsis on Sat Dec 20, 2008 at 03:35:19 PM PST

      [ Parent ]

      •  I always use conundrums too..safe sex (4+ / 0-)
        Recommended by:
        G2geek, rserven, jessical, snackdoodle

        "Better a little late, than a little never"..Julian Winston

        by Johnny Rapture on Sat Dec 20, 2008 at 03:37:13 PM PST

        [ Parent ]

      •  not so much. (6+ / 0-)
        Recommended by:
        LuvSet, snakelass, G2geek, kaliope, rserven, pico

        Phyllis Frye (who I have had disagreements with, but who has done a kickin' job at what she does, in her hardass Texas way) attempted to use this as a lever in her state.  As a trans woman, it didn't get me anything or help anything, from my perspective.  As a medical trans woman whose civil rights teeter on administrative accomodation, it may even have been counterproductive.

        My reading of these things has been (over many, many years of following all too closely -- but IANAL) that judges either have a view of gender as a fixed thing, or they don't.  And those who see it as fixed -- which includes most judges, like most people -- will find a way to justify everything that flows from there.

        I think that a human rights approach -- marriage as a right -- directly challenges the assumptions of gender in any event, all by itself.  You can boil it down to the definition, but you're still up against the same critter.  

        ...j'ai découvert que tout le malheur des hommes vient d'une seule chose, qui est de ne savoir pas demeurer en repos dans une chambre.

        by jessical on Sat Dec 20, 2008 at 03:44:26 PM PST

        [ Parent ]

        •  and the thing that terrifies some of 'em is.... (2+ / 0-)
          Recommended by:
          snakelass, jessical

          ...that they might find themselves attracted to someone who they later discover doesn't fit their definition of "the opposite sex."  

          This was also a big deal when guys started wearing long hair in the 1960s.  Some of the conservative outrage against that practice appears to have been based on the fact that straight guys were finding themselves attracted to ...uh-oh!, other guys!... and freaked out over it.  

        •  White by Law (2+ / 0-)
          Recommended by:
          snakelass, jessical

          I've been reading a book, White By Law, that reviews immigration cases from the early 1900s (mostly). Only whites & African blacks could legally naturalize as citizens at the time. What, though, was "white"?

          As you suggest, judges allowed an applicant to be "white" when it fit their prejudices. Two unanimous US Supreme Court cases directly contradicted themselves in reasoning, though both came to the same result -- non-whites were not allowed. In the first case a Japanese man wanted to naturalize -- he looked at his skin and saw it was whiter than many Europeans. But the Court said, "You're not white because science says you're not a Caucasian." In the second case a dark-skinned Indian (of India) wanted to naturalize and the Court angrily rejected scientists who wanted to classify him as "Caucasian", with the Court deciding science was irrelevant if an ordinary person could plainly see the applicant was not white. In one case a white-skinned non-Caucasian was not allowed to naturalize because he was not Caucasian (Caucasian = white); in the second case a dark-skinned Caucasian was not allowed to naturalize because he was not white-skinned (Caucasian no longer defined one as white). These cases came down within one year.

          Courts have gotten better at race since. They've gotten only slightly better at recognizing the "social construction" of gender.

          •  That's totally fascinating... (1+ / 0-)
            Recommended by:
            snakelass

            ...thank you!  Very cool.

            I confess, honestly, to mixed feelings.  Come the revolution!  Gender is social!

            But you know, the last time I renewed my passport at the state department office, I could see my surgeon's letter on the screen, digitized.  I'd submitted it, literally, on the other side of the world.  And every time I cash a check, or cross a border, or need to provide two forms of picture ID, my legitimacy as a person in the unenlightend eyes of society is based on that essentialist, physical definition.  Not even in law: merely as a matter of what the agencies of the United States accept, and do not accept, as proof of gender.

            Do I agree with the definition?  No.  If put in a corner, I'd say it would be better that I lose my legal gender, possibly the right to my name, my modified birth certificate -- all the priviledges of normalcy -- than to perpetuate the overall myth that there are two genders, one here, one there.  But to say I'm filled with anything but ambivalence and terror at the thought would be a lie.

            ...j'ai découvert que tout le malheur des hommes vient d'une seule chose, qui est de ne savoir pas demeurer en repos dans une chambre.

            by jessical on Sat Dec 20, 2008 at 05:39:32 PM PST

            [ Parent ]

  •  I tipped you for your effort but... (2+ / 0-)
    Recommended by:
    pico, jessical

    this conversation gives me icky flashbacks to far too many arguments in feminist theory classes back in college.  I still cringe just thinking about Denise Riley.

    Hope you enjoyed it, Sarah, 'cause we just kicked your silly winking folksy lipsticked ass back to Alaska. Now shut the fuck up and stay there. Also.

    by Kaili Joy Gray on Sat Dec 20, 2008 at 03:17:15 PM PST

  •  If I'm not mistaken... (4+ / 0-)
    Recommended by:
    SecondComing, snakelass, G2geek, jessical

    ...the argument that AG Brown  will make before the California Supreme Court is that Prop 8 makes changes to the Constitution which can't be done with a proposition initiative.

    The optimist thinks this is the best of all possible worlds. The pessimist fears it is true. J. Robert Oppenheimer {-8.25 / -5.64}

    by carver on Sat Dec 20, 2008 at 03:26:38 PM PST

    •  Not exactly. (1+ / 0-)
      Recommended by:
      carver

      As I understand it, AG Brown is moving not only under the procedurally incorrect initiative/majority vote civil rights stripping theory, but also under the precept that the CA Supreme Ct has already articulated (May 08) that marriage between same-sex persons is a fundamental and protected right.

      So no amount of initiatives and constitutional convention results could change that, in AG Brown's reading, except upon proof of a compelling state interest in preventing LGBTs from marrying.

      I'm rereading the AG's brief right now trying to see if my statements above are correct/warranted. If you want to read along, here's the link:
      http://ag.ca.gov/...

      •  Just read it - thanks (0+ / 0-)

        It seems you are reading correctly.  It appears it hinges on the "compelling state interest" provision; I can't see how it can be argued that there is a compelling interest that the SECULAR state has.

        The optimist thinks this is the best of all possible worlds. The pessimist fears it is true. J. Robert Oppenheimer {-8.25 / -5.64}

        by carver on Sat Dec 20, 2008 at 07:25:58 PM PST

        [ Parent ]

  •  I admit to cringing... (10+ / 0-)

    ...whenever I see this arise, because I know it is far too easy for other people to decide what my gender is.  Whenever that happens, it is usually not to my benefit.

    •  Most definitely not (7+ / 0-)

      It's always to their benefit, whatever they perceive that to be.

      Ironic points of light flash out/Wherever the Just exchange their messages. -W.H. Auden

      by Crypsis on Sat Dec 20, 2008 at 03:33:40 PM PST

      [ Parent ]

      •  i wonder about this... (0+ / 0-)

        Let's say someone has XXY chromosomes but male genitalia.  And all their lives they've thought of themselves as male.  

        But then they have a chromosome test and discover the additional X.  

        And they decide that, genetically, they are female on the basis of the "majority vote" of their X chromosomes compared to their Y chromosome (hell, 2 to 1 is 66 : 33, which is a supermajority!).  Aside from that, they keep the genitals they've already got, perhaps because they're scared of surgery (that would be me: if I discovered I was genetically female or mostly-female, I'd still not want to go in for surgery, because I'm a scaredy-cat.)

        So they go to the DMV and other agencies, to attempt to get their offcial gender changed to accord with the vote of their chromosomes.  

        That would be very interesting.  

  •  Diaries like this always remind me of that (2+ / 0-)
    Recommended by:
    Pluto, marketgeek

    episode of House with the female teen model who turned out to be genetically male...

    •  HEY RESCUE RANGERS! (2+ / 0-)
      Recommended by:
      marketgeek, Marja E

      This diary deserves a rescue.  

      This is as important an issue in the marriage debate, as genetics and biology is in any discussion of racism and segregation.  Look up the word "ocrotoon" to see how absurd the latter got in the attempt to deny rights on the basis of race.  

      (Arken, sorry to hijack your first-post to get this "rescue" comment up there where someone will see it, but pragmatically that was necessary.)  

  •  Willam Beeman wrote a great article about this (6+ / 0-)
    Recommended by:
    LuvSet, snakelass, G2geek, kaliope, debedb, Marja E

    A Biological Understanding of Gender Varieties

    Laws Preventing Same-Sex Marriage Are Factually Flawed

    By William O. Beeman, Ph.D.

    Three to ten million Americans are neither male nor female at the time of birth.

    Are the categories "man" and "woman" so obviously clear that they need no further explanation?

    Legislators throughout the nation, trying to prevent the recognition of "gay marriage" contracted in other states, obviously think so. They have introduced legislation that would grant official recognition only to marriages between "a man and a woman."

    Legislation embodying this language has already been passed or proposed in 30 states and may become law in more. For example, the Maryland bill was introduced by Delegate Emmett C. Burns Jr., the founding pastor of Rising Sun Baptist Church in Woodland, who says same-sex marriages are "against
    the public policy of his state." If enacted, "only a marriage between a man and a woman" would be valid in Maryland, and same-sex marriages that take place in other states or foreign countries would not be recognized.

    Perhaps Mr. Burns and other legislators who are pushing these bills don't realize it, but their passage would unwittingly nullify or prevent millions of supposedly heterosexual marriages.

    Why? Because the marriage partners will not meet the medical definition of being "a man and a woman." To make matters worse, most of these couples will not know that they are illegally married.

    Between 3 million and 10 million Americans are neither male nor female at birth. Additionally, as adults they may be genetically of the opposite gender from that which they and their parents believe them to be.

    The medical term for persons of ambiguous gender is intersexual. Estimates of the numbers of persons who may be born intersexual ranges from 1 percent to 4 percent of all children born today, according to Dr. Anne Fausto-Sterling of the Division of Biology and Medicine at Brown University.

    THREE WAYS TO DEFINE GENDER

    The difficulty in determining clear-cut specification of gender arises because there are at least three ways to define it. Two are biological and one is cultural.

    The first biological definition defines gender in terms of chromosomes. Males have an X and a Y chromosome. Females have two X chromosomes.

    The second biological definition assigns gender in terms of male and female genetalia.

    In the third, "cultural" definition, males are people who look and act "male," and females are people who look and act "female." Americans generally want everyone to fit the third, cultural definition, even when people have biological characteristics that are not strictly in accord with a two-gender system.

    BIOLOGICAL CAUSES OF INTERSEXUALITY

    One cause of intersexuality seems to be the possession of an atypical number of chromosomes--only one or more than two.

    A second cause stems from the fact that all humans, no matter what their chromosomal makeup, have the biological capacity to develop either male or female genetalia and secondary sexual characteristics while in the womb.

    Developmentally, some babies are born with male or female chromosomal makeup and with both male and female genetalia, or with some of the genetalia of the opposite chromosomal sex. Dr. Fausto-Sterling points out that there is a smooth continuum between 100 percent biologically male and
    100 percent biologically female, with many possibilities in between.  She calls those with both testes and ovaries "herms." Those with testes and some female genetalia but no ovaries are "merms." Those with ovaries and some male genetalia but no testes are "ferms." This gives the possibility of five rough biological groupings: male, merm, herm, ferm and female.

    Most intersexual Americans are unaware of their true biological gender because under current medical practice, physicians reassign the gender of intersexual infants at birth.

    Such infants are surgically altered and given hormonal treatments so that they will fit into one of the two "cultural" categories: male or female. The test is usually not chromosomal, but based on the "viability" of the
    genetalia to eventually appear "typical."

    Often the parents are not fully informed about what is happening to their children. Dr. Fausto-Sterling calls this medical reassignment a "surgical shoehorn," designed to force intersexed infants into rigid cultural categories that have little to do with biological reality.

    As a result, there are perhaps millions of XX males and XY females living in the United States today. These are cultural males with male genetalia who are genetically female, and cultural females with female genetalia who
    are genetically male.

    Some rather well-known Americans are genetically male, but phenotypically female.

    UNINTENDED CONSEQUENCES OF GAY MARRIAGE BAN

    The current legislative issue has arisen because current court tests of same-gender marriage, if legalized, would effectively recognize such marriage throughout the nation. Legislators obviously have not consulted with scientists in their zeal to prevent legally-recognized "gay marriage."
    Legislation preventing recognition of any marriage except between a "man" and a "woman" will clearly have some surprising and unintended consequences.

    Before a marriage license can be issued in states with such laws, it may be necessary to have a "genetic" test, such as is currently performed on Olympic athletes. Even so, what does an XX male and an XY female do about marriage? This legislation might effectively prevent such people from ever
    being legally married in their state of residence.

    Some legislators have also tried to preclude post-operative transsexuals from marrying by requiring that marriage partners be "potentially fertile." This, of course, would exclude not only transsexuals, but also all intersexual individuals. It would also exclude women who have undergone
    hysterectomies or gone through menopause, and men who became infertile as a result of disease, such as having contracted mumps as adults.

    VARIETY FOUND IN HUMAN GENDER

    The attempt to deny marriage to all but culturally defined males and females through legislating science is eventually doomed to failure, because a two-category male/female system can never encompass the variety of human gender construction.

    A large number of destructive and expensive court cases will arise if such restrictive and ill-conceived marriage laws are passed.  It would seem far more reasonable to allow any two persons wishing to ratify a personal relationship to do so, without having to satisfy a standard that has little relationship to reality.

    _______________________
    William O. Beeman is associate professor, Department of Anthropology, Brown
    University, Providence, Rhode Island. He writes, "I know PFLAG very well and applaud its work. This article may be copied and distributed in any format. An earlier version was published March 17, 1996 in The Baltimore Sun."

    For further information see: - "The Biology of Homosexuality and Transgendered," article by Susan M. Menking, MD - Web site of the Intersex Society of North America, including information
    and bibliography, at http://www.isna.org; - Myths of Gender: Biological Theories about Women and Men, by Anne Fausto-Sterling; - Neither Man nor Woman, by Sereena Nanda, on third sex societies in India and around the world.

    Politics is the art of preventing people from taking part in affairs which properly concern them. - Paul Valery

    by inclusive on Sat Dec 20, 2008 at 03:50:44 PM PST

    •  bingo! exactly! (1+ / 0-)
      Recommended by:
      snakelass

      I've been ranting about this issue for years, and have used the same arguements as the professor above.  

      Bottom line is, the cultural concept of binary gender has as much basis in science as astrology or auras.  The law may as well have been written to say that a person with a blue aura can only marry someone with a red aura, and those with purple or pink polka-dots can't marry at all.

    •  Thanks inclusive! (0+ / 0-)

      I was looking for something like this.

      Ironic points of light flash out/Wherever the Just exchange their messages. -W.H. Auden

      by Crypsis on Sat Dec 20, 2008 at 05:41:36 PM PST

      [ Parent ]

  •  The brain is the largest sex organ . (1+ / 0-)
    Recommended by:
    snackdoodle

    Look to the brain .
    Don't look to the shorts .

    "I don;t need to , because I don't give a shit who YOU are" MAORCA ***mean people suck***

    by indycam on Sat Dec 20, 2008 at 04:00:43 PM PST

  •  If we can not (0+ / 0-)

    define what a man or woman is, why do women get treated as a minority for Government contracts? I have been getting discriminated against....need me lawyer.....  :)

    "The most virtuous hearts have a touch of hell's own fire in them" Tennyson

    by Void Indigo on Sat Dec 20, 2008 at 04:32:26 PM PST

  •  Depends on what the definition of "is" is (0+ / 0-)

    I believe someone lost that argument.

  •  I would like to see California start performing (4+ / 0-)
    Recommended by:
    inclusive, snakelass, Marja E, blueash

    gay marriages where the two partners stand between a man and woman as they tie the knot.

  •  Don't get overly hung up on the words (0+ / 0-)

    The courts would probably hold that the terms "man" and "woman" incorporate or are informed by the statutes or regulations that legally define sex in California at the time of the amendment.

    Laws and constitutions are not magic spells that demand exact precision. The basic rule of statutory construction is that every clause means something; if the court can figure out what it means than that is enough. So long as law isn't nonsensical or overly cryptic, that is usually enough.

    (This is, of course, really general. The definition of crimes, for example, does require a very high degree of precision for due process reasons.)  

    •  And the obvious meaning ... (0+ / 0-)

      Is that 2% of the population can't marry anyone, at all, and 4% of the population might have their marriages voided without warning. Which violates the state  constitution, which declares marriage a fundamental right as well as the Civil Rights Act, since discrimination against intersex people is sex discrimination.

      •  Not really (0+ / 0-)

        California (and every other state) legally defines sex. There is no one who legally has no sex, so no one is excluded from marriage for lack of being either a man or a woman.

        •  Well, states sometimes have multiple definitions (0+ / 0-)

          In fact some states use XX = female XY = male which screws over many people who are X0, XXY, XYY, have AIS, etc. Some states switch definitions to screw TS people over; one case in Texas comes to mind. And so forth.

          •  I'm aware (0+ / 0-)

            To the extent that states my define gender chomosomally, it is very rarely going to arise but the court would probably define sex as male=Y, female= no Y, which is going to be people's expectation in 99.999% of the time. People with AIS and similar conditions are pretty much out of luck--the state's need to define sex within a binary system is probably an acceptable goal.

  •  You are assuming that actual science (2+ / 0-)
    Recommended by:
    Donkey Hotey, Marja E

    has something to do with this? The people behind this don't understand or believe science.

    Great diary and excellent discussion of phenotype and genetic variance, but politically it's irrelevant. Like telling racists that genetically there are no races but a single species with continuously variably expressed phenotypes. Too complex for the retros.

    Tipped and recced for real knowledge and a reasoned and cogent argument, despite my cynical comment about politics.

    820 Illinois-427 Senate Sponsored-152 Senate authored. Obama record on Bills. Palin record 0-0-0. Palin Lies-1 big one and counting.

    by marketgeek on Sat Dec 20, 2008 at 05:52:47 PM PST

  •  There was a case in Texas that accidentally (1+ / 0-)
    Recommended by:
    Marja E

    legalized some forms of gay marriage.  Not the intended consequence, I'm sure.  It said that the gender you were at birth was your gender no matter what.  I believe the case had to do with a post-op transsexual marrying someone who was of the opposite sex, and the court invalidating it because they said you couldn't change sexes.  What that did was legalize the marriages of trans-gendered people that considered themselves gay, such as a M2F in a relationship with a female. They might consider themselves gay, but the law considered them straight.

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