Kudzu and the California Marriage Amendment

by Rick Moen

August 25, 2008

(last updated August 6, 2018)

This past century, large portions of the American South have been consumed by an unintended side-effect.

I refer to the infamous "kudzu" vine, imported from Japan for its stunning erosion-control properties. This tactic worked: Crumbling riverbanks and hillsides were stabilized all over the South — but, then, everyone realized with mounting horror that this hardy legume is almost completely unstoppable anywhere protected from hard freezes, growing at the awesome rate of a foot per night and reaching heights of 100 feet. Entire abandoned houses have been observed to vanish under a kudzu carpet, over a summer growing season. It's now considered a pest; sometimes, an outright menace.

The plant can be used with caution, where its invasive side-effect is known and planned for — but the point is that it was deployed without understanding its full effects.

Laws' side-effects, likewise, can render them self-defeating (though, on the bright side, bad laws are easier to eradicate than kudzu): I'm going to explain, below, why recently popular marriage-definition legislation like California's November 2008 "California Marriage Protection Act" (an initiative state-constitutional amendment) creates kudzu-class unintended side effects its proponents haven't anticipated and will find horrific — in that they're going to end up mandating and legally sanctifying exactly the sort of same-sex marriages they're intending to ban.

Please note: Yr. humble author is deliberately avoiding the question of whether same-sex marriage is desirable, an offense against God, and so on. (For what it's worth, said author is a heterosexual genetic male, happily and monogamously married to qty. one (1) heterosexual genetic female. So, this essay is not a sneaky ploy to induce gender confusion in unwary citizens.) It's not that I don't have opinions on that contentious question. It's just that they're not relevant to what I'm writing about.

In short: I'm going to show that recent legislation restricting marriage to "a man and a woman" — regardless of whether you consider that effort good, bad, or indifferent — is going to produce harmful, unintended side effects (maybe even for you, your family, your friends, and so on), exactly the opposite of what proponents intend.

I'll not be moralizing, and this isn't lobbying from the "intersex" movement or anyone else. I'm just a regular hetero guy, quietly telling you what's starting to happen, why, and how to see for yourself. OK?

Marriage Protection Meets Biology

Here's the sort of law we're talking about:

Proposition 8

Eliminates Right of Same-Sex Couples to Marry: Initiative Constitutional Amendment SECTION I. Title This measure shall be known and may be cited as the "California Marriage Protection Act." SECTION 2. Article I. Section 7.5 is added to the California Constitution, to read: Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.

Now, that's simple and should have predictable, orderly results, right? I'll bet the Soil Conservation Service guys in the 1950s thought that about kudzu, too.

The biggest problem is that laws like the California initiative will make the courts decide who is male and who is female — and all available decision criteria create unavoidable miscarriages of justice that will, or should, dismay initiative proponents.

You're probably thinking, about now, that I'm going to exaggerate the sex-definitional1 problem: Probably, you and everyone you know is unambiguously male or female — or at least has always believed himself or herself to be so, and nobody's challenged that, and nobody's likely to.

That's true, absolutely: Only maybe one live birth in 100 has some non-standard sex anatomy, and genetic anomalies are slightly rarer than that. However, let's talk about those 1-in-100 or 1-in-1000 cases — because those could be you, or your aunt, or your best friend — and because our system of law has to deal with 1-in-1000 situations, too.

An illustrative example: Let's say you're an adult woman. You were always female; you never had any doubts about this. You have all the right parts and none of the wrong ones; you think of yourself as a gal. You get married. (Yes, I do mean to a man.) Somewhere down the road, your genes get tested: To your astonishment, it says you're not only not XX (double-X being the classic female chromosome pairing), but in fact XY (classic male chromosomes). Testing shows your blood to be loaded with