Thursday, March 26, 2015

Fourteenth Amendment and Marriage, Part I

We’re within a month of hearing oral arguments before the Supreme Court regarding the question of re-defining marriage. On April 28, SCOTUS will be interested in arguments on two questions, related to several consolidated cases:

US Supreme Court
official photo, found on Wikipedia

1.      Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2.      Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
So our first step ought to be to look at the Fourteenth Amendment. It has five sections; Section 1 is the relevant one. It reads:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Fourteenth Amendment passed in 1868, as part of Reconstruction, after the Civil War and the freeing of slaves. The purpose was to make sure that newly freed slaves would receive full citizenship rights throughout the United States, disallowing particularly the southern former slave states from abrogating the rights to vote, own land, own businesses, and otherwise fully participate as citizens equal before the law.
There were nevertheless “Jim Crow” laws relegating anyone with “black” appearance or known blood relation to second-class status in many southern states. Those were wrong, and took the mainly non-southern, Republican support in hand with Martin Luther King and other southern blacks to push through Civil Rights legislation in the 1960s, a full century after the passing of the Amendment XIV.
Neither the Fourteenth Amendment nor the Civil Rights movement would have been necessary if we had had a people committed from the beginning to the radical but self-evident truth that “all men are created equal,” as we declared in our Declaration of Independence. But, since it took a while to get a critical mass of racially neutral people, we had to restate the self-evident.
You may have noticed that the Fourteenth Amendment does not say, “All States shall be required to re-define marriage to include couples of the same sex.” What is being argued is that “couples” are being discriminated against because of their sexual orientation—and therefore the longstanding definition of marriage used in civilizations through the millennia of recorded history must be declared null and void and replaced with something new and more inclusive.
So first we need to ask, do all “couples” (or couplings, or joinings together) merit the same inalienable rights as individuals? And second, what new definition of marriage would be suggested to lead us further into civilization?
Are all couples (or combinations of two or more) created equal? Existing marriage laws say no. A couple eligible for marriage, traditionally and in written law, has been a man and a woman, of marriageable age or of an age that parental consent can be given lawfully (differing state to state), not too closely related (differing state to state), not married to any other person.
While that last one has differed from culture to culture, with some cultures allowing one man to marry more than one woman, each such marriage is between the man and the singular woman. And such marriages have never been allowed without full knowledge of the other marriages—marriage to another without knowledge is a deceit prosecuted as bigamy—nor have such marriages ever been legal in one of the United States. (Utah outlawed plural marriage in 1890, six years prior to gaining statehood.)
So, the standard definition of marriage has always required an eligible man and woman, joining together exclusively in a contract intended for life, consummated with a particular sex act that can lead to offspring—and offspring are a social good that society is interested in.
Marriage predates this nation’s laws, and any others’. Because it is a contract, we ask for enforcement and mediation, as we do for other contracts. As in any contract, terms have specific legal definitions. The purpose of the national DOMA (Defense of Marriage Act), signed by Pres. Clinton 1996, was to reinforce the definition that was commonly in use, to say that in contracts involving the Federal Government (some thousands at the time) would define marriage as between one man and one woman—as all the states up to that time did, with a temporary blip from Hawaii that was almost immediately reverted to the standard definition. But in 2013, the Supreme Court ruled (erroneously, in my opinion) that DOMA was unconstitutional because it had no rational basis except to discriminate.
DOMA did not discriminate; it reasonably defined a legal term commonly in use. But the ruling essentially made it so that there would be no definition of marriage in US law code; such definitions would come from whatever the states of particular citizens defined the term as.
It could be significant in the current cases that SCOTUS has already ruled that the federal government has no business either defining the term or forcing a federal government definition on the states.
The cases before the court now are related to federal circuit courts that have ruled that states do not have the right to define marriage—unless they change their definition to include same-sex couples. In other words, the courts have deemed it discriminatory for states to care about the forming of families as the best place for children to be raised by their mother and father in a permanent relationship. These courts have decided that states shouldn’t care about children, about permanence, about exclusivity, or even about the gender between those involved in producing children . But they think it is rational to force states to ignore all those things and define marriage as any sexual relationship between any two people who choose to announce their coupleness for the time being, whether or not it is exclusive or permanent, and with the certain knowledge that it cannot produce children, not for lack of fertility, but because of human biology.
The Fourteenth Amendment does require that the laws apply to all citizens equally. Persons with same-sex attraction are treated no differently under traditional marriage laws. There has never been a “ban” against homosexuals who choose to follow the law and marry. They can marry a person of the opposite sex, who is of age, who is not a close relative, who is not already married to someone else—the same as the rest of us. There is no discrimination.
When they want to “marry” someone who does not fit the requirements, they are requiring special treatment. They are claiming it is discrimination if all of society does not submit to changing the definition especially for them. How is their request different from someone who wants to marry someone who is already married? It’s love, they say. That’s what marriage is about! How can you be so cruel as to say no to people who love each other just because one of them (or both) is already married to someone else?
That won’t happen, you say? But it has. Have you heard the term “throuple”? It’s a “marriage” in which the number is not limited to two. Three homosexual men were “married” as a throuple in Thailand on Valentine’s Day. Not here, so not a worry? But it already happened here. In Massachusetts in August 2013. Two of the lesbian women were legally “married” two and a half years earlier. (Massachusetts was the first US state to recognize same-sex “marriage,” in 2004, when the state court imposed it.) Massachusetts does not recognize this new "marriage" form but will refrain from prosecution unless state benefits (taxes filed jointly, for example) are sought by the third woman. But this throuple had additional paperwork drawn up by a lawyer to equally divide their property, and one of them has since given birth to a child fathered by an anonymous sperm donor.
If a state cannot define the terms used in the contract, then it cannot be allowed to limit the number. It cannot limit the genetic relationship of the participants (i.e., you couldn’t prohibit a brother and sister from marrying). It might not be able to prohibit underage marriages. The Court would be saying you can’t discriminate against any persons who want to declare that their sexual relationship is a marriage. The definition would be new, unlimited, untried, and amorphous enough to be essentially meaningless.
So, the answer to SCOTUS’s first question should be no; the Fourteenth Amendment does not require the redefinition of marriage to suit the desires of people who do not meet the requirements of the contract.
That’s enough for one day. We’ll save the second question before the Court for Part II.

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