Intersexuality and Universal Marriage

The proposed Federal Marriage Amendment would raise to the constitutional level the traditional understanding of marriage as the union of one woman and one man. In so doing it would raise to the constitutional level the questions of who is a woman and who is a man. There is currently no settled case or statute law answering these questions. A 1979 Australian annulment case declaring a husband with XX sex chromosomes to be neither a man nor a woman demonstrates the law’s inability to deal with the physically intersexed. Legal scholars defending the traditional view of marriage cite 19th century physical incapacity cases as evidence that only the reproductive sex act can consummate a marriage. In retrospect many of the wives in these cases were physically intersexed. Underlying these cases is an understanding that the two ends of the marriage of young persons are reproduction and the lawful indulgence of the carnal passions and that infertility is not sufficient grounds for annulment. Marriage is not about children. In contrast, in the marriage of old persons the partners take each other as brother and sister. Marriage is not about sexual activity. This essay argues that the law cannot present marriage as a fundamental liberty available to every person while at the same time providing rules that unproblematically classify everyone as woman or a man legally able to marry men and women respectively. Consequently, marriage as a fundamental liberty must be made universal, available to all couples, regardless of their “sexes.