Before we can consider the public purposes of marriage in America, we must understand what marriage means in America. In trying to understand what marriage means, we realize how convoluted our definition has become. Without even reaching the issue of same-gender unions, the United States Supreme Court has seemingly led the way over the last forty years in confusing the concept of marriage as both a legal and social institution, ultimately reducing it to a temporary, limited, and potentially harmful relationship to which neither sexuality nor procreation need be bound.

By their insistence in characterizing marriage as a right, the judiciary has caused further confusion. In fact, as the Supreme Court in particular has characterized marriage, the right to marry, at least in the constitutional context, is legally an oxymoron. To understand why this is so, one must first recognize that a constitutional right is a guarantee against state interference. Coupling this understanding of right with the legal concept of marriage, one is left to ask, particularly given the current debate over a right to marry for gay or lesbian couples, what state interference a right to marry would prevent that the Court has not already blocked.

In a haunting concurrence in Lawrence v. Texas, Justice O’Connor wrote, “I am confident, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a law would not long stand in our democratic society.” Can the same be said of marriage? What if the Supreme Court said today, "We will accept your Judeo-Christian notion of marriage, between a man and a woman, but only if you are willing to take the whole package, an irrevocable partnership, for the whole expanse of daily life, for the good of spouse before self, and freely embracing the procreation and education of offspring"?

Perhaps Justice O’Connor is right: In our democratic society, such a definition of marriage would not long stand. But we must be willing to accept the challenge that we can sell as good such an understanding of marriage. In addition, our marketing of this concept of marriage cannot be limited to court houses or legislatures, for in the end, the only victories that matter are those to be had in human hearts and lived in human lives.