Today, the Supreme Court will hear two and a half hours of oral arguments in Obergefell v. Hodges, and three other cases in which district and appellate courts were split, on whether to toss out state marriage laws or not. Two months ago, the 6th Circuit upheld Ohio’s right to define marriage as a union between one man and one woman, thereby establishing a split with other federal circuits and creating the need for intervention by the Supreme Court.
What is before the Court?
In order to understand what is at stake this week, and eventually in June when the court renders a decision, we must first discern what is not before the court.
The court is not rendering an opinion, nor should it, on the morality or prudence of same-sex relationships. That is a question for society to answer.
The court is not rendering an opinion on whether two consenting adults have the liberty to live together in all ways. They certainly have that right and have been doing so for quite some time.
The issue before the court is whether there is a federal constitutional right for same-sex partners to obtain a marriage license, thereby preventing the people or legislators of sovereign states from defining marriage as it always has been since the nation’s founding.
This is not a question of religiosity or a debate over culture. That is a societal conflict that will be settled outside of court. Even the strongest supporter of homosexuality or the idea of a same-sex marriage cannot deny the fact that there is no mention of any form of marriage in the Constitution. States have plenary authority over marriage. Justice Kennedy’s primary argument for overturning DOMA was that it represented federal encroachment on a state’s “broader authority to regulate the subject of domestic relationships” (even though DOMA only defined marriage for federal purposes); certainly it would be hypocritical of him to now create a federal mandate barring states from defining marriage.
Corrupting the 14th Amendment
Supporters of federal coercion contend that their aspirations are mandated by the Due Process and Equal Protection clauses of the 14th Amendment. But that is a prima facie absurdity because everyone in this country, including homosexuals, indeed have the right to marry. If they don’t desire or feel unable to marry the way the term has been defined since creation, that is not a denial of their due process. Remember, every homosexual couple also has the right to live together without a marriage, much like many heterosexual couples do in our generation.
What plaintiffs are asking is for the federal court system to simultaneously change the definition of marriage (which is not mentioned in the Constitution), while precluding states from maintaining their own definition through their democratic processes. It is simply beyond reason to believe that the 14th Amendment was drafted to prevent states from denying a status that nobody would have conjured up at the time, especially a status that runs counter to Natural Law and Common Law. In the very least, proponents of same-sex marriage need to use the democratic process to change the definition of marriage in order to achieve their goals. And judging by their bravado about recent polls, what do they have to fear from letting the people decide?
In order to assert a new fundamental right, the Supreme Court has laid out a constitutional test in Washington v Glucksberg (1997) when the court ruled unanimously that assisted suicide is not a fundamental liberty interest. The asserted right has to be so “implicit in the concept of ordered liberty” that “neither liberty nor justice would exist if they were sacrificed.” To prove a substantive due process violation of that right the court has ruled in Malagon de Fuentes v. Gonzales (2006) that the aggrieved person must show how this right is "deeply rooted in this Nation's history and tradition."
How can anyone assert such a claim of a concept that was not even conceived until this generation, thereby bypassing the political process to create that right?
Where is this headed?
Furthermore, what plaintiffs in the marriage cases can never answer is this: if marriage – as dictated by federal courts – is no longer defined as a special union between one man and one woman, what is the definition of marriage? They would have to define marriage, in the course of redefining it. They would have to draw parameters but it seems there is absolutely no legal jurisprudence one can employ to include homosexual relationships in the definition of marriage and not polygamist or incestual relationships
If anything, there is more of a Natural Law argument to include those relationships before homosexual ones because they can procreate. Unless of course, the court here is more interested in solving a political matter, than a legal one.
Accordingly, there is no rational basis for any one of the Justices to decide in favor of coercing states to adopt homosexual marriages but not all other relationships. Yet, four and possibly five Justice are so driven by personal beliefs that rational basis and legal jurisprudence will never sway their decision. So what is this really about?
The only way the Court can arrive at the conclusion so many in the media are supporting is for them to create a new protected class carved out exclusively for homosexuals. By using the court to create a new fundamental right and protected class instead of the political process to resolve a societal question, the Court will codify the anti-religious bigotry we’ve witnessed over the past few years into law. An Oregon baker, for example, is facing a $135,000 fine for not engaging in involuntary servitude to provide a specific service for a homosexual wedding.
Perforce, what is really before the court tomorrow has nothing to do with liberty, love, and equality for homosexual relationships; it is all about corrupting the Constitution and using the boot of government to violate the individual and religious rights of the other 97% of the population.
Daniel Horowitz is the Senior Editor of Conservative Review. Follow him on Twitter @RMConservative.
Editor's Note: This piece was originally published by Conservative Review.