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Same-Sex Marriage and Discrimination: Hatred, Homophobia, Bigotry…or Something Else?

The Supreme Court’s refusal on Monday to review appeals from Utah, Oklahoma, Virginia, Indiana and Wisconsin on the definition of marriage effectively legalizes same-sex marriage in those states.  Citizens in those states had already decided for themselves to define marriage as between one man and one woman.  The Supreme Court held in U.S. v. Windsor last year that it is the province of the states to define and regulate marriage; but by refusing to hear the same-sex marriage cases appealed to it, the Supreme Court is allowing judges to seize the authority of the states to govern themselves on this matter.  The Supreme Court is letting stand rulings from lower federal courts striking sound state marriage laws that were duly enacted through the proper channels of the democratic process.

 Legal challenges to same-sex marriage bans mounted over the past year in the wake of Windsor, and the Supreme Court’s decision not to review any same-sex marriage cases this term means that litigation will continue.  In September, Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit overturned the same-sex marriage bans of both Indiana and Wisconsin.  The Supreme Court’s denial to hear the appeals from both of these states means that, for now, this ruling prevails.  In his decision, Judge Posner likened same-sex marriage bans to prohibitions on interracial marriage, which were struck by the Supreme Court as unconstitutional in the case, Loving v. Virginia (1967).  Posner’s opinion relied heavily on a comparison between interracial marriage bans and same-sex marriage bans.  According to Posner, laws defining marriage as between one man and one woman have “no reasonable basis,” because they are based on “hate” and “savage discrimination,” similar to interracial-marriage bans. 

1. Can Same-sex Marriage Be Compared To Interracial Marriage For Purposes Of Determining Unjust Discrimination Under Constitutional Law?

The Supreme Court landmark case, Loving v. Virginia, is considered to be the single most important marriage law case in American history.  The Supreme Court held that a law prohibiting the marriage of a black woman and a white man based solely on the race of the woman constitutes unlawful discrimination based on race, and violates the fundamental right to marry.  The Supreme Court stated in Loving: “Marriage is one of the basic civil rights of man, fundamental to our very existence and survival.”  According to Loving, procreation is an essential and irreplaceable component of marriage.  Loving did not re-define marriage, as same-sex marriage cases seek to do.  Contrary to Posner’s opinion, Loving actually reaffirmed the definition of marriage as between one man and one woman.  It recognized that a marriage between a white man and a black woman is a valid marriage because the essential components of marriage were present: a man and a woman.  Re-defining marriage to include same-sex couples would overturn the central holding of Loving.

Some may argue that not all heterosexual married couples have the ability to procreate, so procreation is not a definitive aspect of marriage.  I would argue in response that only a man and a woman can perform an act which could naturally result in the procreation of children and the formation of a biological family unit.  The union of same-sex couples cannot accomplish this under any circumstance.  As former U.S. Attorney General Ed Meese and Ryan T. Anderson stated in The Washington Post [1] this week: “But while not every marriage has children, every child has a biological mother and father – and marriage policy tries to maximize the likelihood that every child will be raised by his or her mother and father.”

2. Why Would Anyone Define Marriage As Between One Man And One Woman?  Is There A “Reasonable Basis?”

Posner held: “The governments of Indiana and Wisconsin have given us no reason to think that they have a ‘reasonable basis’ for forbidding same-sex marriage.”  He stated that arguments in support of defining marriage as between one man and one woman are so irrational that they “cannot be taken seriously.”

The underlying purpose of defining marriage as between one man and one woman is to promote the continued existence of society through the procreation of children in a stable family unit with biological parents.  This is not irrational.  To think that this is something good for society and that it is a worthy aim of a piece of legislation is perfectly rational, and not based on hatred of a group of persons. 

The courts and legislatures of this country have never treated marriage as something focused solely on adult desires and lifestyle choices.  On the contrary, the procreation of children, the creation of stable family units to build society, and the needs of children to be raised by their biological mother and father – each of whom play a unique and irreplaceable role – have always been recognized by lawmakers and judges. 

3. What Is Discrimination, And When Is It Legal Or Illegal?

Under the law, not all discrimination is unconstitutional or illegal.  To “discriminate” simply means to draw a distinction, to treat a certain group differently from another group.  This is perfectly constitutional as long as the law serves a rational purpose and does not discriminate arbitrarily.  For example, the law prohibits persons without medical degrees from practicing medicine.  This law treats non-doctors differently and discriminates against them, but the discrimination is legal because it is not based on hatred for non-doctors, but because non-doctors are incapable of doing what doctors do – competently practicing medicine.  Prohibiting same-sex couples from marrying is not unconstitutional discrimination because the state’s underlying purpose for treating such couples differently is not based on hatred against them, but on the physical reality that they are incapable of performing an act naturally ordered towards the procreation of children.

4.  Is “Love and Caring” The Only Essential Component Of Marriage?

In September, Louisiana’s same-sex marriage ban was upheld [2] by U.S. District Judge Martin C. Feldman in Robicheaux v. Caldwell.  Feldman asserted that if “love and caring” was the defining component of marriage, then any combination of unions is possible.  He stated:  “Must the states permit or recognize a marriage between an aunt and niece?  Aunt and nephew?  Brother/Brother?  Father and mother?  May minors marry?  Must marriage be limited to only two people?  What about a transgender spouse?  Is such a union same-gender or male-female?  All such unions would undeniably be equally committed to love and caring for one another, just like plaintiffs.” 

It wouldn’t end there.  What about a beloved pet or other animal?  In truth, only one union is capable of promoting the good of the couple, of any children, and of society: the union of one man and one woman.  This is where the line naturally falls.



Human Sexuality
Under the law, not all discrimination is unconstitutional or illegal. The law treats doctors differently than non-doctors, lawyers differently than non-lawyers…. And it’s all quite reasonable. Is there a reasonable basis for limiting marriage to one man and one woman?