Is the question of same-sex marriage 
over? The Supreme Court has ruled in 
Obergefell v. Hodges that same-sex marriage 
is legal and must be recognized across the United States. Does that settle the 
matter? Actually, no. The Supreme Court has made other definitive decisions 
which have been later overturned because the assumptions from which those 
decisions were made were false. Last Monday marked the 160th anniversary of
Dred Scott v. Stanford, 
a seven to two decision by the U.S. Supreme Court that African-Americans whose 
ancestors were slavers were ineligible to be considered people of the United 
States. This May will mark the 90th anniversary of the famed
Buck v. Bell decision by the Court, where they authorized the forced 
sterilization of people.
So, what are the assumptions underlying the 
Obergefell decision? One is that the state has a role in defining marriage.
1 
Certainly, governments have traditionally recognized marriage and crafted 
legislation that affects its citizens on the basis of their marriage status, but 
do governments have the authority to define the very essence of what constitutes 
marriage? Just what is marriage and who gets to define its terms?
How Do We 
Begin to Understand Marriage in Relation to Law?
In the debate over same-sex 
unions, it has been popular to place the "what is marriage" question into a 
dichotomy. Most people ask whether marriage is something invented by the state 
or something that stands objectively outside the state. In reality, though, 
there are three categories societies rely upon to understand and help in the 
civil interaction between its individuals: societal creations, societal 
conventions, and natural laws.
Societal creations are those things that are 
invented by the state. Examples include which is the "right" side of the road to 
drive on, the legal recognition of corporations as individuals for legal 
contracts, and the postal system. Each of these are creations of the state 
and each can be redefined or even abolished through legislation. 
Natural laws, on the other hand, are recognized by the state but sit above the 
state. The right to life, the right practice one's religious beliefs without 
undue government interference, the right to not be enslaved, and the right to 
the fruits of one's labor are things that government doesn't give us; we hold 
them inherently as a result of being human. While governments can pass 
legislation that denies us our rights, the rights themselves don't go away. They 
are simply being infringed upon. Just as the slavery issue proved, even if the 
law states slavery is legal, that doesn't eliminate the right to freedom for the 
slave. It just means the law is corrupt.
Societal Conventions Differ from 
Societal Creations
But there's a third aspect to societal interactions: 
societal conventions. These are things that naturally come out of civil human 
interaction. David Hume defined convention as "a sense of common interest; which 
sense each man feels in his own breast, which he remarks in his fellows, and 
which carries him, in concurrence with others into a general plan or system of 
actions, which tends to public utility."
2I think that's 
right. Shows of respect, for example, are ubiquitous across all cultures. 
However, what counts as a sign of respect can differ widely, like bowing before 
a company president versus simply shaking his hand.
The wedding ring is 
another convention we use to communicate marriage. Not taking another person's 
spouse would fall into natural law, but the way to recognize a person as married 
can and has differed in different societies, with the wedding ring serving as a 
societal convention that is recognized across Western culture.
Is Marriage a Creation, a Convention, or a Reflection of Nature?
Justice Kennedy in his majority opinion seems to place marriage in the 
category of a societal convention. He said, "The ancient origins of marriage 
confirm its centrality, but it has not stood in isolation from developments in 
law and society." Here, Kennedy is I think purposely obtuse. What does he mean 
by "the ancient origins of marriage?" The coupling of men and women to produce 
children is older than human history itself. It's ingrained into our biology. 
Does that mean every sexual encounter is tantamount to marriage? Of course not. 
However, marriage has always been seen as the intentional joining of two people 
of the opposite sex presumably for life, whether or not any government exists to 
recognize it as such. 
Kennedy is also right to say that marriage has not 
stood "in isolation from developments in law and society." But that doesn't mean 
marriage itself is a societal convention. While the ring that helps people 
recognize marriage is a convention, the marriage that it symbolizes existed 
before rings. It existed before marriage certificates. Marriage is actually a 
reflection of nature, and to degrade it to a social convention that can be 
changed or redefined undercuts the essence of what marriage actually is.
So, 
what about those "developments in law and society" to which Kennedy refers? He 
rightly raises the point that arranged marriages are no longer the norm for 
Western societies. More importantly, he points out law of coverture are no 
longer recognized, either. Is this an example showing how legal recognition 
changed marriage itself? Do these changes show that marriage itself can evolve? 
No, for these do nothing to change the essence of marriage, which is the only 
recognized institution humanity has ever had to properly rear the next 
generation. Let me state that again. There exists no other institution that 
human beings recognize for the proper creation and rearing of children than man-woman 
marriage. 
Governments cannot define marriage because governments didn't create 
marriage. Governments can only recognize marriage as the institution rooted in 
nature that it is. Like other natural laws, governments can choose to ignore what 
marriage is or choose to abuse or withhold it from its citizens. Just because 
the Supreme Court said that Dred Scott had no inalienable rights because 
his ancestors were slaves or Carrie Buck had no right to protest her forced 
sterilization, doesn't mean those rights didn't exist. It just meant the Court 
was in grievous error.
In my next article, I'll go a little further into the distinction 
between creations, conventions, and natural laws, demonstrating that even though 
governments may pass laws with respect to aspects of marriage, it in no way 
proves that marriage itself can be defined by law.
References
1. In the decision, Justice Kennedy wrote, "Changed 
understandings of marriage are characteristic of a Nation where new dimensions 
of freedom become apparent to new generations."
2. Hume, David. "Appendix III. Some farther 
considerations with regard to Justice." 
An Enquiry into the Principles of 
Morals. The University of Adelaide Library. 26 Feb. 2014. Web. 13 Mar. 2017.
https://ebooks.adelaide.edu.au/h/hume/david/h92pm/appendix3.html.