Fourteenth Amendment and Marriage, Part II

Today is the second part looking at the questions to be answered in oral arguments before the Supreme Court on April 28^th. There are two questions being addressed.

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?

We covered question 1 in Part I. Today we’ll cover question 2, plus take a look at the status of marriage laws in the states prior to a ruling.

Question 2 relates to Article IV of the Constitution, Section 1: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”

Normally, a contract formed in one state is upheld in the other 49 states. But marriage isn’t a normal contract. A simple contract between two people—such as co-ownership of a boat—would hold up beyond state boundaries. But a marriage is more complicated. It’s more than just a two-person contract; government and society are involved in honoring the particular thing that marriage is. While the marriage remains intact, we offer joint ownership of property accumulated during the marriage—which allows for one spouse to stay home to care for offspring while the other spouse earns income for the whole household, and other arrangements particular families might find beneficial. Insurance is different for married and single people. Taxes are different for married and singles (sometimes choices can be made to do what is most beneficial, filing jointly or separately).

Then there are things the state is required to do when the participants choose to end the contract—to divorce. States differ in general rules for dividing property. And then there’s the more difficult issue of dealing with child custody—preferably in the best way possible for the children while not abrogating the rights of fit parents.

Note that states already differ in ways they handle divorce; the couple is subject to the laws of the state in which they divorce, regardless of what the laws were where they married. The Full Faith and Credit clause does not require a state to have its laws subsumed within some other state’s laws, just because the contract was formed there.

Things would be less messy if no same-sex “family” had child custody issues. No such couple can produce children, so if a child is genetically related to one or the other, the simple decision would be to allow custody to the biological parent. If laws had been maintained to allow adoption only by married husband and wife, there would be no messiness now, in which homosexual couples complain that we, society, have somehow marginalized their children by making it seem that their family forms were less valid.

We did not make it that way; nature made it that way. And so far these “parents” are failing to prove themselves equally valuable to children or society. More studies are showing that same-sex parented families have outcomes seriously inferior to married parent families.[1]  Among the amicus briefs offered to the 5^th Circuit Court in January came from a group of now-adult children raised by same-sex parents, declaring the problems they faced, ranging from sexual confusion, to fear of disagreeing with the same-sex “marriage” promoters (risking ostracism from family relationships), to subjugation to sexual predation—apparently unprotected by the parents, and possibly even enabled by those parents.

We do, however, have precedent for how to treat marriages formed in other states (other sovereign nations) that do not meet our basic definition. Various countries throughout history, and currently in our world, allow for multiple wives. Our government does not recognize more than one as a legal wife. Most of the time there is not interference with these people’s chosen family forms—unless they start requiring government recognition, such as in taxes, welfare, or child custody. It would be a simple thing to apply the same pattern among the united sovereign states in the US. If there are differences in what can be accepted as a marriage, then let the couple be aware of where they are going, as they do now concerning divorce.

No one is going to stop these people from traveling state to state and staying together. Nobody cares. But if they move to a non-recognizing state and then start requiring the state to determine their division of property and child custody disagreements, they shouldn’t expect the state to deal with them as their state of origin might. Nor should they expect the state’s tax laws to change just to satisfy them.

It shouldn’t be possible for a small state, like Massachusetts, which had same-sex “marriage” imposed on the people by its state supreme court’s misreading of their constitution, to suddenly by fiat go against the will and belief of the people in all the other states. That is not the intention of the Fourteenth Amendment, nor of the Full Faith and Credit clause.

Changes happen day-by-day lately. But I’ve attempted to find the current status of marriage in the United States and its territories. By my count, currently 25 states have had same-sex “marriage” imposed on them regardless of the state’s laws and constitutions to the contrary. Ten states plus the District of Columbia have had same-sex “marriage” imposed on them by state legislatures, with varying percentages of agreement from the people. Eight states have court rulings attempting to impose same-sex “marriage,” but these are under appeal and haven’t been imposed yet (or fully imposed in some cases). Seven states and the remaining five territories still have their original definition of marriage—so far.

If the SCOTUS ruling is that states have no right to define marriage in a way that doesn’t include same-sex couples, that would be at odds with the purpose of the 14^th Amendment, and it would reverse the Court’s most recent ruling.

If the ruling on question 1 is that states have the right to their own definitions, as was made clear the last time the Supreme Court looked at the issue, then it would allow any or all of those 25 court-imposed states to revert to their traditional definition of marriage. That would be a swing from 35states licensing same-sex couples to only 10 (plus DC). And it would move the number keeping the traditional definition of marriage to 40 plus the territories. If that is the ruling on question 1, then it is likely that individual state laws will be respected in question 2 as well.

An anti-freedom ruling on either question would face state sovereignty challenges in a number of states (Texas, for one).[2] But the ruling would be expected to go beyond the court cases at issue and apply to every state.

So the stakes are high. Certainly higher than anything court related was intended to be by the writers of the Constitution. We’ll be watching and praying that the justices understand the law and abide by it, for the sake of civilization as we know it.

While the questions address specifically whether same-sex "marriage" will be imposed generally, we should be aware that every time same-sex "marriage" is allowed, freedom of religion comes under attack. Civilization requires a religious people, self-governing according to codes of conduct based on the Ten Commandments, and protecting family as the basic unit of society. Same-sex "marriage" isn't just a question of whether homosexuals have an innate right to marry whoever they choose regardless of the definition of marriage; it is a question of whether we choose to live in a civilized society, along with freedom and prosperity--or the alternative of savagery with tyranny and poverty.

---

[1] Citations related to same-sex parents and children’s outcome:

• Parliamentary Report on the Family and the Rights of Children, January 2006.

• Douglas Allen, “Review of the Economics of the Household,” October 2013, described in “A Married Mom and Dad Really Do Matter: New Evidence from Canada,” by Mark Regnerus: http://www.thepublicdiscourse.com/2013/10/10996/  

• Loren Marks, “Same-sex parenting and children’s outcomes: A closer examination of the American psychological association’s brief on lesbian and gay parenting,” Social Science Research, Volume 4, Issue 41, [  http://www.sciencedirect.com/science/journal/0049089X/41/4     ] July 2012, pp. 735-751.

• Mark Regnerus, “How different are the adult children of parents who have same-sex relationships? Findings from the New Family Structures Study,” Social Science Research, Volume 41, Issue 4, July 2012, Pages 752–770.

• Ana Samuel, “The Kids Aren’t All Right: New Family Structures and the ‘No Differences’ Claim,” The Witherspoon Institute, June 14, 2012, http://www.thepublicdiscourse.com/2012/06/5640/#_edn1. [See the footnotes as well.]

• Ann Bailey, “How do children fare when reared by same-sex couples?” United Families International Blog, June 11, 2012 [has an excellent graphic]: https://unitedfamiliesinternational.wordpress.com/2012/06/11/how-do-children-fare-when-reared-by-same-sex-couples/

[2] The Texas Legislature is currently considering a bill that would disallow officials from granting licenses to same-sex couples or any others that do not meet the requirements of the law, as written in the state constitution; it is a sovereignty issue. More on this bill in a Breitbart news item:  http://www.breitbart.com/texas/2015/01/11/texas-rep-introduces-bill-to-defend-traditional-marriage-and-state-sovereignty/ .

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.