Date of this Version
BYU Journal of Public Law (1998) 12: 239-251.
The dual-gender marriage requirement does not treat men and women unequally. Instead, it recognizes and celebrates the physical differences between men and women and their obvious sexual complementarity. Traditional marriage laws do not discriminate on the basis of gender; rather, they recognize the equal indispensability of both genders to the institution of marriage. The dual-gender requirement, like the decision in Loving, is animated by a moral sense that discerns the true nature of marriage. As Justice Ginsburg put it so well, most people understand that the two sexes are not fungible and that dual-gender marriages and same-sex unions are very different things indeed. These fundamental differences provide a reasonable (indeed, I would say a compelling) justification for traditional marriage laws. The legacy of Loving is dishonored by those who seek to use the decision as a tool to radically remake the institution of marriage "in the image of their dissent."