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Court File No. 684/00




B E T W E E N:
HALPERN et al.,

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Court File No. 30/2001
A N D B E T W E E N:

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I, Adèle Mercier, professor, of the City of Kingston in the Province of Ontario, MAKE OATH AND SAY:

  1. I hold M.A.'s in Philosophy from the University of Ottawa and the University of California at Los Angeles (UCLA), an M.A. in Linguistics from UCLA, a Ph.D. in Philosophy from UCLA as well as a C.Phil. (Ph.D. minus dissertation) in Linguistics from UCLA. UCLA is internationally recognized as one of the best universities world-wide for the study of logic, philosophy of language and mind, and linguistics. I did two years of post-doctoral work at the Center for Studies in Language and Information at Stanford University in California, as well as at the Centre de Recherche en Epistémologie Appliquée of the Centre National de la Recherche Scientifique in Paris, France. I am currently a Queen's National Scholar and tenured Associate Professor in the Department of Philosophy at Queen's University. I am cross-appointed to the Linguistics Program, and have several, related, areas of expertise.

  1. My work as a philosopher is principally in the philosophy of language and the philosophy of mind. My work as a linguist is principally in the semantics and pragmatics of natural language. I have an unusually broad background in both philosophy and linguistics. I am competent in a wide range of areas within these disciplines, including semantics and syntactic theory, ethics, metaphysics, epistemology and logic.

  1. The philosophy of language is a branch of philosophy that deals with such questions as: how words acquire meanings and how speakers succeed in transmitting them to each other; whether and how we know the meanings of the words in our language; what the relation is between the meaning of the word and the objects in the world to which the word refers; how we can refer to things that don't or no longer exist; under which conditions linguistic usages are sexist or racist; whether kinds of things (biological kinds like dogs, chemical kinds like water, social kinds like marriage, functional kinds like chair, and so on) are objective or natural or constructed by language; and other questions of this sort. I have published numerous articles and written a large number of papers dealing with all of these topics. I am currently writing a book on what a word, what a language and what a linguistic community fundamentally are.

  1. The philosophy of mind is a branch of philosophy close to the philosophy of language which deals with such questions as: what concepts are and how they are acquired; what role experts play in our acquisition of concepts; what social norms are, how they come to be, and how we know them; whether and how we know the contents of our own thoughts; what kind of objects thoughts are; how thought and language are related; how we succeed in thinking about objective things in the world; how conceptual change comes about and how that is related to linguistic change; whether and how language shapes perceptions of reality; and other questions of this sort. I have published articles dealing with all of these topics. One of my published articles on language and mind was awarded a Special Distinction at one of the yearly meetings of the American Philosophical Association.

  1. The study of the semantics and pragmatics of natural language is both a theoretical and an empirical study which treats of such questions as: how, in natural languages (i.e. those spoken by humans, as opposed to formal languages like mathematics, and computer languages) different kinds of words mean what they mean; how one and the same linguistic expression can be used in different senses or to perform different functions; how speakers and hearers communicate certain kinds of information that remain unstated in the sentence; what role context plays in what is said; what distinction exists between what is meant and what is said; and other questions of this sort. My linguistic expertise always influences my work in philosophy.

  1. On the basis of my analysis of the affidavits filed in this matter by Professor Susan Ehrlich and Professor Robert Stainton, it is my opinion that Professor Staintons criticisms of Professor Ehrlich are based on faulty reasoning: his arguments are either question-begging, irrelevant or based on a significant misstatement of Professor Ehrlichs position.

  1. In his affidavit filed in response to Professor Ehrlich's affidavit, Professor Stainton rejects her position, concluding that extending the definition of 'marriage' to include lesbian and gay couples would have to alter the very meaning of the term, which "is in conflict with the normal use and development of language." (para. 64) In this affidavit, I review each of Professor Stainton's arguments and demonstrate why, in my professional opinion, his analysis cannot be supported.


10. Only sound reasoning leads to true conclusions. Reasoning is sound if and only if (a) its premises are true and (b) the conclusion follows from the premises by correct application of the principles of logic. I will show that Stainton's argument in his affidavit is unsound, as it violates time and again at least condition (b) above. I will show that Stainton's views are either tautological (i.e., question-begging), fallacious, or irrelevant.

11. An argument begs the question when the conclusion it purports to derive from the premises is itself one of the premises. Question-begging arguments establish nothing at all. Of course if you assume that the moon is made of green cheese, you can prove that the moon is made of green cheese. P always entails P.
12. I will show that most of Stainton's arguments are question-begging. Most implicitly have the form:
If a marriage is only between a man and a woman, (plus some other considerations,) then a marriage is only between a man and a woman.
Tautologies like this teach us nothing whatsoever about anything, least of all about the meaning of the word 'marriage' in contemporary English, or about the nature of marriage in contemporary North American society.
13. I will show that the rest of Professor Stainton's arguments are either fallacious or irrelevant. An irrelevant argument can easily be spotted because it typically has the form: P does not entail Q.

Eg. From the fact that I can ride a bicycle, it doesn't follow that I can ride a motorcycle.

This is true. But the problem with an argument of this form is that:
From the fact that I can ride a bicycle, it doesn't follow that I can't ride a motorcycle.

If from the fact that I can ride a bicycle, it neither follows that I can, nor that I can't, ride a motorcycle, then riding a bicycle is strictly irrelevant to riding a motorcycle. Many of Professor Stainton's arguments are irrelevant.
Review and critical analysis of Professor Stainton's reasoning:

14. In paragraph 9 of his affidavit, Professor Stainton states his argument thus:

It is part of the present meaning of the word 'marriage' in our common tongue that it applies only to male-female conjugal unions. In which case, given the present meaning, it is a necessary truth that same-sex couples cannot marry.
This argument is guilty of several confusions, the most egregious being that of conflating what a word means and what objects in the world it refers to.
Meaning and reference are importantly distinct: The words 'unicorn,' 'the mountain made of gold,' 'the round square', all have a meaning -- but they do not refer to anything in the world.
15. I doubt that the word 'marriage' has never been used to refer to same-sex couples. There are anthropologists, who describe their findings in ordinary English, who maintain that certain cultures (in Africa, for example) permit women to marry other women. (Note moreover that, because of recent events in the Netherlands, as of April 1st (and closer to home), it is no longer the case that the word 'marriage' refers only to pairs of men and women.) Since I am not an anthropologist but a philosopher of language, let me say only this: Even if it were true that the word 'marriage' had referred in the past only to pairs of men and women, that would in no way constitute an argument about the word's meaning, nor an argument that the word 'marriage' cannot refer to pairs other than of men and women. It was true before women were allowed into law school that the words 'judge' and 'lawyer' then referred only to men. To see the flaw in Professor Stainton's argument, one need only imagine someone a century ago objecting thus to the admission of women into law school:
The word 'lawyer' in our common tongue currently applies only to men. In which case, it is a necessary truth that a woman cannot be a lawyer.

16. The meanings of all words of all languages, with the exception of personal proper names (which refer all and only to well-defined single objects, i.e. to a person), always stretch beyond their current reference. The word 'Canadians' currently applies to a different group of people than it applied to a hundred years ago, and than it will apply to a hundred years hence. As Canadians are born and die, the word 'Canadian' undergoes a reference change. Words can undergo reference changes without a change in meaning, unless we are prepared to say that what we mean by 'Canadians' is just the group of people to whom it has ever applied (in which case it is a necessary truth that none of our descendants, nor any new immigrants, can be Canadians). But words just don't work like that.
17. If there never have been and currently are no citizens of Canada who come from, say, Myanmar, that is no argument that it is a necessary truth that Canadians cannot come from Myanmar. Since before Emancipation, the word 'citizen' had never been applied to Blacks in the US, it would follow from Professor Stainton's claim that, as a matter of necessity, Blacks cannot be citizens. Professor Stainton's claim commits him to the view that Emancipation, by extending its reference, changed the very meaning of the word 'citizen' . That is, he is committed to the view that, after Emancipation, even whites were no longer citizens according to the usual meaning of that term in the language.

18. Professor Staintons argument misrepresents the relationship between meaning and reference. If I live on an island where there are only maples and pines, and so I have only applied the word 'tree' to maples and pines, that nowise means that when I visit the mainland and bump into a beech, I cannot, or even ought not, call it a tree. Just because swans have always been white does not mean that it is of necessity that swans be white, so that the first black swan, though begotten from swans, cannot be a swan. Just because what we've been calling 'cars' for the last century were all and only automobiles with combustion engines does not mean that electric automobiles, or automobiles fired by cow manure, aren't cars! Some of the things we call 'shoes' in North America today (high-top adidas, eight-inch thick platform shoes, ...) are unrecognizably different from some of the things we would unhesitatingly call 'shoes' in other parts of the world or at other times in history (those curly things the Dutch wear in Bruegel paintings, and so on). Some of the things we will be calling 'shoes' in the future we cannot now even fathom! The cases are absolutely ubiquitous, because it is in the nature of words, while retaining their meaning, to have elastic boundaries with respect to what counts as satisfying that meaning, i.e. what the word can successfully refer to.
19. I agree with Professor Stainton that 'being unmarried' is part of the meaning of the word 'bachelor'. However, Professor Stainton makes the further claim that truths by definition ("All bachelors are unmarried") state necessary truths. With this, I must disagree. The philosophical literature is replete with examples of truths-by-definition which state only contingent truths: e.g. "I am here now," by definition, is true whenever I say it, but the truth it expresses (that Adèle Mercier is at that place at that time) is not a necessary truth: I could have been elsewhere on that day, indeed, I could have died at birth. So to say that "All bachelors are unmarried" is true by definition is only a fancy way of making the purely logical point that you can't change the meaning of the word 'bachelor' without thereby turning it into a different word 'bachelor' (a homonym of the original, if you will). This is saying no more than that identical sequences of sounds that have distinct meanings count as distinct words, because we individuate words, we identify them, by their meanings. It is importantly not to make any necessary claims about reality.
20. Be that as it may, Professor Stainton's argument begs the question when he asserts that "it is part of the present meaning of the word 'marriage' in our common tongue that it applies only to male-female conjugal unions".
21. The question at hand is precisely: Is it part of the present meaning of the word 'marriage' that some may represent it as applying only to men and women, or is it rather simply a contingent fact about to whom it may have in the past applied ? Of course if you determine in advance that the meaning is past application, then the meaning does not stretch beyond past application. It is no surprise, nor is it very useful to know, that from P, you beget P.

  1. Similarly, Professor Stainton makes several incorrect and question-begging claims in paragraph 14.

The common parlance term 'marriage' can only be sensibly applied to male/female pairs. Exactly why this is the case is complex. Notice, for instance, that the marriage ceremony involves a bride (female) and groom (male), each of whom typically has gender-specific vows. Also, after the ceremony, there is a wife (female) and a husband (male). English does not allow us to say 'I now declare you husband and husband.

This is spurious reasoning. We can see this clearly by stating Stainton's argument premise by premise:

(i) Brides and wives are female. / Grooms and husbands are male.

(ii) A marriage ceremony involves a bride and a groom .

(iii) After the ceremony, there is a wife and a husband.

Therefore, Same-sex couples cannot be married without changing the meaning of the term 'marriage'.
Suppose for the sake of argument that it were the case that, as Stainton claims, (i) follows from the semantic rules of our language. Nothing whatsoever would follow from this about marriage. For premises (ii) and (iii) beg all the central questions. The questions to which we are here seeking answers are precisely whether or not it is necessary that each and every instance of a marriage have a bride and a groom, and that each and every instance of a marriage result in a wife and a husband.1 If lesbian and gay couples can be married, then just as obviously, (ii) and (iii) are wrong, or else (i) is.
22. In paragraph 10 of his affidavit, Professor Stainton concludes that
"matrimony just is the union of a man and a woman."

He has made no argument in support of this conclusion. All he has done is assert that "the current semantics of our common language simply rule out" even asking sensibly whether or not same-sex couples should be allowed to be married. I doubt this case would be before the Court if Stainton were right that we can't even make sense of the question.

23. If a child asked me whether or not boys can be sisters or bachelors can be married, I would conclude that they had not mastered the concepts of sisterhood and bachelorhood. The questions are almost unintelligible: since there is nothing to being a bachelor other than being unmarried, if a bachelor gets married, there is nothing left of the bachelor, so what exactly are they asking? If you devoid a sister of her femaleness, then all that is left is a sibling, and yes, boys can be siblings, but that's not what the kids are asking. It is like asking whether the number two could be the number three, or whether a number could be a tree. Those questions are what linguists call semantically anomalous. Like the sentence "Green ideas sleep furiously" we can't make much sense of them at all.
24. But even the question whether or not visitors from outer space could be married is at least intelligible. If highly intelligent beings with a self-reflective consciousness and free wills, capable of understanding the concept of a promise, and capable of manifesting their wills, landed on earth for a quick wedding, Las Vegas style, a judge might wonder about the political wisdom and legal implications of marrying them, but surely we could make sense of what it is they want. If they applied for admission to law school, we would also understand precisely what they want, despite the fact that none but humans have ever been admitted to law school. If Michael Leshner and Michael Stark were before this Court seeking to be called 'sisters', or 'orangutans', the Court should sentence them to remedial English. But surely this case would not be in Court if everyone did not understand perfectly well what Michael Leshner and Michael Stark are requesting, to wit, the right to have their intimate union legally sanctioned by the state.

25. In paragraph 11, Professor Stainton concludes that to extend the reference of 'marriage' to include also lesbian and gay unions "would be a change equivalent to changing the meaning of the term 'bachelor' to also include married men." In adjudicating whether or not marrying gays and lesbians "changes the meaning (or nature) of 'marriage'" the Court need only ask itself whether allowing women to the bar changed the meaning (or nature) of 'lawyer'. Though I'm sure it has had some effects on the profession, that is not because it made being a lawyer anything essentially different from what it was before. These two instances of extensions of reference are logically, semantically and philosophically exactly on a par.

  1. In paragraph 12, Professor Stainton quotes from the Oxford Canadian Dictionary "which dictionary is commonly accepted as reflecting common usage in Canada, as of 1998." The dictionary definition to which Professor Stainton appeals in determining the necessary properties of marriage is: the legal or religious union of a man and a woman in order to live together and often to have children.

  1. Professor Stainton is committed to the view that since the current definition of 'marriage' states a necessary truth, it cannot be altered. All we can do, according to him, is to create a brand new word 'marriage' with a new meaning (a homonym of the original, if you will). So, what has just happened in the Netherlands, according to Professor Stainton, is that the Dutch government has replaced the old word 'marriage' by a new word (let's call it) 'marriage*', a word defined as " intimate union usually between a man and a woman...". This means that, since the Dutch no longer recognize a difference between the marriages of opposite-sex couples and the marriages of same-sex couples, as of April 1st 2001, every married Dutch couple has ceased to be married and has become married*. If Professor Stainton is right, Canadians at the moment can no longer speak about married Dutch couples. That is because Dutch couples are henceforth married*, but English does not have a word for that concept (that is not what our word 'married' means, according to him, and we don't have another word waiting in the wings to express the concept of marriage*).

  1. The dictionary approach is analytically faulty2 as a means of discerning the essential meaning of a term, let alone necessary truths. One of the most notorious difficulties in writing a dictionary is precisely to delineate strictly lexical information (the essential meaning of the word which posits necessary conditions for satisfying it) from more general encyclopedic material (facts commonly associated with these words but not essential to their meaning). Dictionaries typically provide both, but many so-called definitions found in dictionaries are thick in encyclopedic material and extremely thin in lexical information.

  1. For example, my Merriam-Webster Dictionary (1989) defines 'kangaroo' as: "any of several large leaping marsupial mammals of Australia with powerful hind legs and a long thick tail." Obviously, as a merely lexical definition, this is astoundingly false. The kangaroos born at the Toronto Zoo are not from Australia but they are not, for all that, lesser kangaroos. Nor is it essential to any kangaroo's being such that its hind legs be powerful, indeed that it have any legs, that its tail be thick, that its tail be long, and that it be able to leap. If pollutants in their food supply universally made them unable to leap, they would perhaps be sickly kangaroos, but no less kangaroos for all that.

  1. It is Professor Stainton's guess, but that's all it is, that the dictionary's "union of a man and a woman" is meant as strict lexical information and hence stating a necessary condition rather than meant simply as encyclopedic material. It is also Professor Stainton's guess, but that's all it is, that the dictionary's "union of a man and a woman" implicitly contains the word 'only'. That what the definition really is saying is that a marriage is a "union only of a man and a woman". But if the definition of 'kangaroo' implicitly means "only any of several large leaping marsupial mammals of Australia with powerful hind legs and a long thick tail", then sickly kangaroos are, of necessity, not kangaroos at all.

  1. Even a Canadian dictionary is committed to representing the fact that the meaning of the word 'marriage' for Canadians extends well beyond what marriages look like in Canada. This is what allows Canadians to speak naturally of "an arranged marriage" or "the third marriage of the Sultan" despite the fact that such legally sanctioned intimate unions there bear little similarity to those familiar to us. Though Professor Stainton's views commit him to the contrary, the following is, as a matter of fact, a well-formed sentence of Canadian English, one which every competent speaker of Canadian English as it currently exists is perfectly capable of understanding: "Some married couples in the Netherlands are of the same sex." This entails that the definition of a marriage as a union only between members of the opposite sex has become, strictly speaking, obsolete. At the very least, future dictionary entries will have to include a same-sex caveat, on pain of being straightforwardly inaccurate.

The dictionary definition of 'marriage' cited by Professor Stainton is also an egregiously bad one. It fails to capture an enormous number of relationships that we actually do and otherwise would countenance as bona fide marriages, and captures an enormous number of relationships that we would only very dubiously if at all count as marriages.3

  1. None of the elements of the dictionary definition of 'marriage' cited by Professor Stainton, taken separately or together, amount to the elaboration of either necessary or sufficient conditions for what counts, in ordinary parlance as well as under the laws of Canada, as a marriage. It is very difficult (read: practically impossible) to define terms by stating necessary and sufficient conditions. That is precisely why dictionaries contain so much encyclopedic material. That is also precisely why dictionary definitions have to be checked against common usage, and not the other way around. The definition cited by Professor Stainton itself fails to meet his own standards that "describing the difference [between linguistic meaning and other associations] with subtlety and care is at the heart of good linguistics." Without even considering gays and lesbians, the definition he cites is incorrect as it applies to what Canadians actually count as marriages.

  1. Professor Stainton also claims that the marriage ceremony is the method for becoming life partners which "has a faith-based history". This is arguable: Simone de Beauvoir and John Stuart Mill are just a few who have traced the roots of the institution to the selling and bartering of women, and to protection of property and lineage. Be that as it may, the fact that an institution has a history has no bearing at all on what the institution represents today in the consciousness of individuals. Many universities and schools are institutions which have religious roots, yet that in no way compels them to be religious institutions today.

32. In paragraph 15 of his affidavit, Professor Stainton reasons as follows:

There are two senses of the word 'marriage': the literal and the metaphorical ("a close association" that bears some resemblance to marriage without being one, like "a marriage of minds"). Let us call these 'marriage' and 'marriage12', respectively, and agree that 'marriage1' is the only relevant sense that matters here. The expression 'same-sex marriage' is therefore ambiguous. It could mean 'same-sex marriage2'.
There are several serious problems with this statement:
(1) The only sensible reply to this form of reasoning is: Sure. Note however, that it could just as well mean 'same-sex marriage1'. In short, an argument like this proves nothing. It is irrelevant.
(2) Another irrelevant argument appears as he continues in paragraph 15 of his affidavit:

[E]ven if the sense of 'marriage' at play in 'same-sex marriage' were 'wedlock'/'matrimony', rather than 'close association', our speaking of "same-sex marriage", which involves the use of the adjective at all times in addition to the noun, would still not show that 'marriage' (in the sense of "wedlock") actually applied to gay and lesbian unions.

Perhaps, but it would still not show that 'marriage' (in the sense of "wedlock") actually did not apply to gay and lesbian unions. To say that P does not show Q is not to say that P shows not-Q.
(3) Professor Stainton provides no evidence that our speaking of same-sex marriage involves the use of the adjective at all times. Surely if gays and lesbians could legally marry, there would be no need at all for the qualifier. "Mr and Mrs. P and Q request the pleasure of your company at Mary and Sue's wedding" and "Hans and Derk have had a fulfilling marriage since being legally allowed to be married" are not sentences that lack a word. The reason for the current use of a qualification is precisely because people recognize that gay and lesbian marriages are not yet recognized by Canadian law.
(4) Later in this section, Professor Stainton discusses the sort of adjective which semanticists call nonrestricting adjectives, an example of which is 'fake'. A fake diamond is not a diamond, fool's gold is not gold, a plastic tree is not a tree. (By contrast, a restricting adjective respects the following entailment: A tall surgeon is a surgeon. A bad lawyer is a lawyer. An Albanian philosopher is a philosopher.)
Professor Stainton then suggests that perhaps 'same-sex marriages' and 'gay marriages' are not intended in common parlance to mean 'marriage1'; witness the fact that the adjectives 'same-sex' and 'gay' might be understood by their users as nonrestricting adjectives, in which case a same-sex marriage would no more be a marriage than a fake gun is a gun.

Perhaps some speakers use 'same-sex' and 'gay' as nonrestricting adjectives. But then again and just as much, perhaps not. In my professional opinion, most people do not use these terms as nonrestricting adjectives.4 But in any event, the argument is irrelevant. Imagine running the same argument with other qualifiers of marriage, like 'interracial marriage', or 'second marriage', where the mere possibility that 'interracial' and 'second' might be understood by their users as nonrestrictive adjectives would be held as a reason to doubt that an interracial marriage is really a marriage, or that a second marriage is really a marriage. There was a time when interracial marriages were illegal in some parts of North America, but legal in others. There were people then who did treat 'interracial' as a nonrestrictive adjective because they couldn't fathom that an interracial marriage could be a bona fide marriage any more than a fake diamond could be a bona fide diamond. (We call them racists.)
33. Professor Stainton is right when he states in paragraph 16 that "given its semantics, 'marriage,' in the sense in question, does not refer to just any intimate union". Strictly speaking, (at least in Canada now) 'marriage' means: a legally sanctioned intimate union.

However, he is mistaken that, as a matter of meaning, 'marriage' currently applies only to male/female pairs. The best he could say (but it is of questionable empirical accuracy) is that, as a matter of reference, 'marriage' may have applied in the past only to male/female pairs. As I have shown, even if this were true, it would in no way preclude the application of the term to gays and lesbians henceforth. Until the 1880s, as a matter of reference, 'lawyer' had applied only to males. Meaning is distinct from reference.
34. In paragraph 18 of his affidavit, Professor Stainton states:
Even though in common parlance we may refer to ... common-law relationships as "common-law marriages" they are not marriages in sense 1 any more than a "same-sex marriage" would actually be a marriage.
(1) Professor Stainton is right that common-law marriages are not marriages in the sense of being created through stipulated legal processes. (Of course, this does not prevent people from thinking of common-law marriages as if they were marriages11.) Although common-law marriages are intimate unions, they are not strictly speaking legally created in the same way as 'marriages1' (though the law may recognize some legal dimensions to them), and the meaning of 'marriage1' in Canada now is: legally sanctioned intimate union.
What we call 'common-law marriages' are necessarily common-law marriages2. By definition, there could not be common-law marriages1. That is because, by definition, a common-law marriage is an intimate union that is not created through a ceremony known as 'marriage.' That is, the moment those in a 'common-law marriage' go through a 'marriage' ceremony, they are no longer common-law; they are married.
By contrast, the moment you legalize a same-sex marriage, it is not the case that you are no longer same-sex. This shows that 'common-law' and 'same-sex' are not the same kind of qualifiers.

To be in a 'common-law marriage' (i.e., not to have gone through a 'marriage' ceremony) while being married (i.e., while having gone through a 'marriage' ceremony) is a contradiction in terms. That is why it states an impossibility: contradictions are impossible; their opposites are necessary. But there is no contradiction in terms in having a same-sex couple go through a 'marriage' ceremony. That's why 'same-sex marriage' does not state an impossibility, nor is its opposite a necessity.
To say that common-law marriages are not marriages1 "any more than a 'same-sex marriage' would actually be a marriage" is entirely question-begging. Again, if same-sex marriages were legally sanctioned, they would be bona fide marriages. It is only as long as they are not that they are not. Once again, P begets P. Professor Stainton reaches the conclusion which he has presupposed to be the case at the outset.
35. In paragraphs 19 and 20 of his affidavit, Professor Stainton states without evidence that:
The key distinguishing feature of marriage is its history, including in recent history, its religious origin.
(1) I seriously doubt that it is within the purview of a linguist or of a philosopher, and least of all of a cognitive scientist, to make such an assertion. The history of marriage repeatedly painted by University of Toronto professor Edward Shorter, a historian of the family, describes marriage in traditional societies in such gloomy and violent terms as to lead one to think that if marriage has its roots in religion, it must be in the Satanic religion. I have searched one of my favourite books, Professor Shorter's revealing historical study of the roots of the modern family, for a description of the most functional marriage I could find. Professor Shorter writes:

In this chapter [Men and Women in Traditional Society] I shall argue that popular marriage in former centuries was usually affectionless, held together by considerations of property and lineage; that the family's arrangements for carrying on the business of living enshrined this coldness by reducing to an absolute minimum the risk of spontaneous face-to-face exchanges between husband and wife; and that this emotional isolation was accomplished through the strict demarcation of work assignments and sex roles. Whereas the modern couple would brim over with expressive behaviour, hand-holding, and eye-gazing as they embarked upon the interior search, the traditional husband and wife were severely limited: "I'll fulfill my roles, you fulfill yours, we'll both live up to the expectations the community sets, and voilà, our lives will unfold without disorder." It would never have occurred to them to ask if they were happy. 5
One is left wondering both what understanding of 'religion' Professor Stainton has in mind that would be consistent with this historical description, and why we should take such depressing history, religious or otherwise, as any kind of distinguishing feature, much less "the key", for our current-day consciousness about marriage.
Professor Staintons account denies the reality that there are legally valid marriages which are entirely secular in approach. Moreover, to say that marriage is a descendent of older traditions, religious or otherwise, is a perfect truism. Every person, thing, place, indeed the whole universe are descendent from their past. Nothing ever erases its origins. However, to say that "marriage just is a descendent of a practice with religious roots" (provided it is true, which is doubtful) is exactly like saying that "English just is a descendent of Old Norse". However true it may be that French is a descendent of Old Norse, I don't speak a word of Old Norse.
(6) When Professor Stainton claims that "an understanding of the term 'marriage' necessarily entails this long and rich history", that "to look at marriage as divorced from religion is to miss the meaning of marriage altogether", and that "it is essential to understanding precisely what the word 'marriage' (in sense 1) actually means that we cannot divorce our understanding of the term from its history", he is precisely failing to practice his own preaching (paragraph 8 of his affidavit) on the "important difference between linguistic meaning and other associations".
Our word 'sofa' has its origins in cushions that used to be placed on the backs of camels. Our word 'assassin' has its origins in hashish eating, from the Hashishim, a cruel bunch of ruffians who traditionally ate hashish before going on murderous rampages. To say that because of this history, the meaning of 'sofa' for us today in any way involves camels, and the meaning of 'assassin' for us today in any way involves hashish is simply preposterous.

Yet that is exactly the argument of Professor Stainton: because of its history, the meaning of 'marriage' for us today must involve religion.
The term 'marriage', like the concept of marriage which it denotes, is no more of necessity linked to its religious or woman-bartering history in contemporary consciousness than the concept of wedding gifts is of necessity linked to the institution of dowry, itself linked to the practice of selling women, from whence it derives its origins.
37. People are free to make any association they like with the concept of marriage. They are free to think it a good thing, a bad thing, an essential demonstration of commitment, and inessential demonstration of commitment, a moral prerequisite for doing good by one's children, an irrelevant prerequisite for doing good by one's children, an importantly religious institution, an importantly non-religious institution, what have you. These associations in no way impinge on the essence of a marriage in contemporary Canadian consciousness, which is the formal recognition through legal sanction of an intimate union. Even love and sex, though surely part of the associations that Canadians nearly universally make with the notion of an intimate union, are not essential components of the meaning of 'intimate union'. Though it is hoped that people who marry love each other, it is not a requirement of the state, nor do people cease to be legally married just because they cease to love each other. Though it is expected that people who marry will have sex with each other, people do not cease to be legally married when they cease to have sex with each other.
38. It is no doubt true that most people today associate marriage with a man and a woman, for the very same reason that people used to, and to an unfortunate extent still do, associate being a lawyer and being a judge with being a man. But being a man is part of the essence of neither being a lawyer nor being a judge.
What, exactly, is the issue

39. I would like to finish my comments on section II of Professor Stainton's affidavit by emphasizing a point which he has failed to acknowledge.
Professor Stainton has distinguished two senses of 'marriage' -- the literal sense (our 'marriage') and the metaphorical sense (our 'marriage12') ("a marriage of Chrysler and Benz"). He has accordingly pointed out that the only sense of 'marriage' relevant to the current petition is 'marriage1'. What he has failed to acknowledge is the following:
(1) It seems to me entirely correct to say that, in contemporary consciousness in Canada, there are in fact two concepts of marriage1. There is the religious concept of marriage1 and there is the legal concept of marriage1 (I will call the latter 'legal marriage1' and 'civil marriage1' interchangeably.) These two are properly distinct, not only in contemporary consciousness but in the religious and legal institutions that are commonly understood to underlie such concepts. That is demonstrated by the fact that a religious marriage1 is not recognized by Canadian law as a legal marriage1 unless it is authorized by the state to be a legal marriage, and that not all legal marriages1 are recognized as religious marriages1.
Various grounds suffice for a religious marriage1 to be annulled in some religions; but an annulment even by the Pope does not constitute in and of itself the dissolution of a legal marriage1.
The Anglican Church did not recognize as a religious marriage1 the Duke of Windsor's civil marriage1 to Mrs. Simpson because she had previously divorced. Many religions do not recognize as religious marriages1 the legal (or religious) marriages1 of one of their members with someone of a different religion.

I know a very lovely Catholic woman of advanced years, long ago abandoned by her husband, who looked sincerely bewildered at the judge who recently signed her divorce. "You can't divorce me," she cried, "I'm married forever before God!" The woman may well have been right that her religious marriage1 was eternal, but it was her civil marriage1 that the judge was dissolving, not her religious marriage1. Judges in Canadian courts are not vested with the power to dissolve religious marriages, anymore than the Pope is vested with the power to dissolve Canadian civil marriages1.
It is one of the foundational principles of logic (known as Leibniz's law from the philosopher of the same name) that two things are identical if and only if they have all and only the same relevant properties. Religious marriages1 and civil marriages1 have some but not all of their relevant properties in common. Hence they are distinct.
(2) There are some countries, for example Egypt, where religious marriages1 and legal marriages1 are not distinguished. I have an Egyptian muslim friend who laments the fact that she cannot marry her Egyptian copt boyfriend because they are disallowed by law, because of their religion, to marry. Egypt can do that because Egypt is a religious state. Canada is not such a state, as far as I know.
(3) There are people who associate the concept of 'marriage' so intimately with the concept of 'the sacred' as to take them to be inextricably linked. But sacredness is an essentially religious concept.6

To the extent that the concept of the sacred belongs to the essence of marriage, it clearly belongs only to the concept of religious marriage. There is an inalienable (non-religiously) spiritual dimension to my commitment to my civil marriage; but there is nothing, strictly speaking, sacred about it, and civil marriages need not have such a deeply spiritual dimension. The philosophical question to be asked is why marrying gays and lesbians would in any way desacralize marriage in the first place.

(4) There may well be people, indeed many people, who associate in their minds, sometimes confusedly, the concept of religious marriage and the concept of civil marriage11. That does not make those concepts the same, even in their minds. Sometimes I have trouble distinguishing an African elephant from an Indian elephant, a beech from an elm, and potato soup from cauliflower soup. Nevertheless, my concept of an African elephant (hence what I mean by that term) is distinct in my own mind from my concept of an Indian elephant (hence what I mean by that term), my concept of a beech distinct in my own mind from my concept of an elm, my concept of potato soup from my concept of cauliflower soup.
It is my contention that in the consciousness of most Canadians, there co-exist two concepts of marriage1, witness the fact that they are capable of distinguishing them in thought. At least anyone who has understood -- not agreed with, necessarily, just understood -- the above paragraphs has demonstrated the existence in their minds of that distinction.
(5) Whether 'marriage1,' civil or religious, is a concept that extends to gays and lesbians is a matter of whether or not we include them in our respective concepts of civil and religious community. The Catholic Church has decreed that gays and lesbians, at least sexually active gays and lesbians, are excluded from the community of Catholics. In fact, not just gays are excluded, but also non-gay priests who openly object to this exclusion, many of whom have been excommunicated over the issue. Whether our common concept of a civil marriage1 extends or not to gays and lesbians is exactly a matter of whether or not we include gays and lesbians in our concept of civil community.
(6) The next time the Oxford Canadian Dictionary sends me a postcard requesting my input about the meanings of words for Canadians, I will send in the following as my best summation of what is essential to the concepts Canadians have of a civil marriage1 according to my professional philosophical and linguistic judgment, and notwithstanding whatever other associations Canadians may entertain about marriage:

marriage: 1. civil (Noun)

An intimate union freely entered into by a couple, each partner of which is capable of taking a vow and of manifesting it publicly, and cognizant of so doing at the time, which is sanctioned by the laws of a country.

It is an empirical issue, not one of norms, whether gays and lesbians have the capacities required for marriage.

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