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| 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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