Religion & Law

Over at Slate, Kenji Yoshino continues the conversation with Robby George et al. regarding the nature of marriage.  I find the exchange to be healthy and productive, not because it's reaching consensus, but because it's clearing away much of the name-calling and easy assumptions and getting down to the core of the disagreement.  The core, not surprisingly, centers on the malleability of marriage.  Yoshino articulates his view:

[T]hose who have propounded trans-historical, much less eternal, definitions of marriage have often been time's fools. Fifty years from now, I expect new challenges will be made to the definition of marriage. Yes, such challenges could take the form of challenges to recognize polygamous marriages (in fact, such challenges would not be new, as they were made on grounds of the free exercise of religion in the 19^th century). Currently, I would distinguish polygamous marriage primarily on the intuitive ground that one can give one's full self to only one other person?that is, that the "undivided commitment" the co-authors praise can be valuable even in the absence of common procreation. But I would prefer to test such intuitions if and when such debates become live national controversies. I do not purport to know where future challenges will arise, or how those challenges might require us to reassess the purposes of marriage. I refuse to answer the question "What is marriage?" by saying "Marriage is one thing, always and everywhere, for all people." I regard that refusal as a strength, rather than as a weakness, of my position, as I do not think we stand at the end of history today.