If States license same sex marriages the Fourteenth Amendment may mandate the issuance of categories of marriage licenses akin to types of state diplomas.
At issue in the cases DeBoer v. Snyder, Obergefell v. Hodges, Tanco v. Haslam, Bourke v. Beshear is “the constitutionality of state marriage definitions.” The United States Supreme Court has agreed to decide (1) whether the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and (2) whether the Fourteenth Amendment requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The question is not whether persons of homosexual orientations have a right to marry same sex partners when licensed by the State to do so and thus are entitled to ensuing benefits as provided by law, but whether such persons have a constitutional right to ‘marry’ a person of the same gender when doing so requires the State to redefine the institution of marriage. At its core the first question to be decided by the Court asks, does the United States Constitution require States to recognize variations on hetero-normative (male-female) sexual orientation mandating redefinition of marriage by the State to permit persons who espouse non heterosexual orientations (male-male and female-female) to obtain licenses to ‘marry’ each other.
To mandate that States redefine the institution of marriage to accommodate same sex marriage, the United States Supreme Court must conclude that propagation of the species in an orderly manner is not necessarily a rational and legitimate interest of the State in defining and licensing marriage. Such determination would find the State’s reservation of the institution of marriage as a vehicle for the orderly possible propagation of the species within the unit itself by licensing exclusively the union of a male and a female person therein is unconstitutional as an impermissible infringement on the fundamental right of an individual to ‘marry’ a person of choice.
However, restrictions on marrying persons of choice always have existed and found to be within the purview of the State. Polygamy laws and bigamy laws restrict married persons from marrying additional persons. Age restrictions exist, often with different cutoffs by gender. Incest laws prohibit certain marital unions. Persons determined incompetent by the State cannot consent to marriage and the State has the power to annul unions entered into by such persons. Prisoners may be allowed to marry but may be denied conjugal visits in a restriction of marriage rights. Reasonable restrictions on marital unions have been imposed by the State and found to be constitutional when a legitimate vested interest of the State has been identified.
Because the propagation of the species has depended upon male-female sexual interaction, over millennia societies have recognized and sanctioned such unions in a variety of forms which fall under the rubric of ‘marriage.’ Over the past half century the United States Supreme Court has held that private homosexual sexual activity between consenting adults (excepting incest) is not the State’s business. Marriage, however, remains the only institution by which society gives explicit permission for those in the marital union to engage in sexual relations with each other. The Supreme Court’s determination that ‘consummation’ of the union is not necessary for a valid marriage removed the physical union of male and female genitalia from the requirements for a valid marriage rendering coitus optional but not mandatory. Though this determination was made in the context of heterosexual marriage, it is argued by supporters of same-sex marriage that this decision removed the necessity of one party possessing operative female genitalia (woman) and one party possessing operative male genitalia (man) from the definition of a marital union, mandating States to license a marriage between persons of the same gender.
The answer to the first question before the high Court may center on whether the constitution mandates States to issue any marriage licenses at all. Some states recognize common law marriage. This recognition is an acknowledgment that marriage is at its core a contractual arrangement between individuals. Thus the State’s interest in licensing marriages stems from an understanding by the People that granting individuals licenses to marry serves a public purpose. The license is not marriage; it simply declares that there is no impediment to the impending marriage and that the named parties are free to proceed. The issue is whether a State constitutionally can conclude that if the parties seeking a license to marry are of the same gender, is this a fatal impediment prohibiting the grant of the license to marry within the territory of the State.
Love relations and sexual relations between same sex individuals who enter into unions and co-habitations which as a matter of universal, non discriminatory human biology and physiology cannot theoretically result in the propagation of the human species would appear to be outside the vested interest of the State with no discernible public interest served by licensing such unions. If, however, the United States Supreme Court finds that the Fourteenth Amendment mandates States to license same sex marriages, such licensing shall redefine marriage and effectively dissolve it as an institution inherently concerned with orderly propagation of the species. The resulting marriage union would be an ordinary contractual construct equivalent to any other partnership agreement cognizable under law. Ultimately marriage rights may depend upon the skill and prowess of the attorney who drafted the marriage agreement. This may well discriminate against those who cannot afford good lawyers.
Traditionally, marriage has been defined as a legal contractual or common law arrangement whereby male and female enter into a close, personal and intimate relationship and as a result of the intimacy sanctioned by society as appropriate therein, there exists at least theoretically the biological possibility of new life being born of the union.
Should the Supreme Court sever the theoretical biological capability of the marriage union to result in propagation of the species (by mandating redefinition of marriage to include same sex unions) this could prejudice the rights of heterosexuals who depend upon the traditional definition of marriage to legitimize their cohabitations and intimate sexual relations with members of the opposite gender which may result in pregnancy of the female. Women who engage in sexual relations with their husbands maintain their public virtue and reputation. Women impregnated by their spouses are not subjected to shame and ridicule and ostracism in society. Redefining marriage to accommodate same-sex marriage may deprive those in heterosexual marriages of the unique legal protections afforded them by the State in return for marrying and potentially propagating the species in orderly fashion within the marital union.
The male-female marital union definition is not the rearing of children in a family unit; the definition is not the determination of inheritance rights and estate distributions; the definition is not people in love cohabitating. The definition of a marital union as an institution historically recognized, sanctioned and licensed by the State is the joining together of persons as marriage partners who theoretically possess the biological capability to propagate the species. If this core understanding (“deeply rooted in this Nation’s history and tradition” Washington v. Glucksberg, 521 U.S. 702-721 (1997)) is removed from the definition of the institution of marriage, there is no remaining institution of marriage as historically defined. The word marriage survives, but its definition as a legitimate concern of the State becomes unclear, and the special Federal and State benefits associated with the marital union may not survive.
Traditionally, the husband and male spouse is presumed under law to be the father of any child born of the wife and female spouse. A child born to a spouse in a same sex marriage is presumed by law not to be a product of the marital union. This is a profound legal distinction and it could well be unconstitutional for marriage laws to confer support and estate distribution obligations on married heterosexuals which are not conferred on homosexuals in same sex marriages. If the theoretical biological capability of making new people is determined by the Supreme Court to be of no consequence to the legal definition and understanding of the marriage union on what basis can a female spouse (wife) demand that her male spouse (husband) support the offspring born of their marital union? The female spouse may have the same rights to child support afforded women whose offspring are born outside of marriage, but the rights would not stem from the nature of the marital union itself which by definition no longer would concern propagation of the species.
Pregnancy is never a consequence of sexual relations in same sex marriage.
No spouse in a same sex marriage who elects to have a child by natural means can do so without committing adultery.
100 percent of births to persons in same sex marriages are out-of-wedlock.
No spouse in a same sex marriage who elects to have a child by natural or artificial means can do so without proliferating out-of-wedlock-births.
These two facts alone establish that while male-female unions and same-sex unions both may be labeled marriage, they are fundamentally different institutions with divergent and conflicting impacts on the vested interests of the State in encouraging orderly propagation of the species within marriage and discouraging out-of-wedlock births.
The Constitution may require the State to offer (i) heterosexual male-female marriage licenses, (ii) homosexual male-male marriage licenses and (iii) homosexual female-female marriage licenses if it elects to redefine marriage to encompass same sex couples. A marriage union is the only institution in society which the State licenses as a vehicle for orderly propagation of the species. Exempting same sex couples and not heterosexual couples from the societal norm that propagation of the species within the marital union serves valid vested interests of the State “rejects the long established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State.”
1963: When 24 percent of black infants and 3.1 percent of white infants were born outside marriage Daniel Patrick Moynihan, later U.S. Senator from New York, issued a report entitled The Negro Family: The Case For National Action. Moynihan warned of calamities associated with the growing number of out-of-wedlock births. By 2010 the rate increased to 73 percent for black mothers and to 29 percent for white mothers based on reports by federal Centers for Disease Control and Prevention in 2012.
2003: “[I]f poor single mothers were married to the actual fathers of their children, two-thirds would immediately be lifted out of poverty:” Heritage Foundation Center for Data Analysis Report No. CDA03-06, May 20.
2013: The U.S. Census Bureau’s American Community Survey reported that states with higher percentages of out-of-wedlock births in 2011 tended to have a higher incidences of poverty. The State of Utah was reported as having the nation’s lowest out-of-wedlock birth rate in 2011 at 14.7 percent (poverty rate 11.6 %). New Hampshire followed at 20 percent (poverty rate10.3 %). The District of Columbia had the nation’s highest out-of-wedlock birth rate at 50.8 percent (poverty rate: 22.7 %). The rate for Louisiana was 48.7 percent(poverty rate 18.5 %). Mississippi’s rate was reported at 48.1 percent (poverty rate16.1%) and New Mexico’s percentage was found to be 47.6 percent (poverty rate16.1).
Does a State’s Denial of a Marriage License to Two Persons of the Same Sex ‘Degrade’ and ‘Demean’ Same Sex Couples ?
In United States v. Windsor, the United States Supreme Court by a majority of 5-4 held that the Defense of Marriage Act’s (DOMA) defining a marriage as a union of a male and a female person was unconstitutional as a usurpation of the State’s right to define marriage and in violation of the Fifth Amendment stating “the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does.” (emphasis added)
Justice Scalia dissenting:
When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” [Lawrence, 539 U. S. at 578.] Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,”—with an accompanying citation of Lawrence. (internal citations omitted)
“T]he majority [opinion] says that the supporters of this Act [DOMA] acted with malice—with the “purpose” “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,”.; to “impose inequality,”; to “impose . . . a stigma,”; to deny people “equal dignity,”; to brand gay people as “unworthy,” and to “humiliat[e]” their children….: (internal citations omitted)
Chief Justice Roberts also dissenting:
“The majority extensively chronicles DOMA’s departure from the normal allocation of responsibility between State and Federal Governments, emphasizing that DOMA “rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State.” Thus, while “[t]he State’s power in defining the marital relation is of central relevance” to the majority’s decision to strike down DOMA here, that power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions.” (internal citations omitted; emphasis added)
Proponents of same sex marriage argue that the legal issue concerns solely marriage equality, and that any rejection of this argument is animus plain and simple. In U.S. v. Windsor, the Supreme Court ruled that the federal government’s disparate treatment of same sex couples under the Defense of Marriage Act (DOMA) violated the Fifth Amendment. But if the issue were simply marriage equality then the definition of marriage would need not be disturbed. When the Thirteenth Amendment to the United States Constitution ended slavery and declared freedom to be a birthright, the definition of freedom was not disturbed. The Amendment simply declared that race and previous conditions of servitude did not and could not strip people male or female in gender of the inalienable right to be free. Correspondingly, the overturning of laws prohibiting miscegenation did not require a redefinition of the institution of marriage. Laws prohibiting miscegenation were found by the Supreme Court to be unconstitutional because of such determinations as marriage is a fundamental right involving personal choices and is a liberty protected against unwarranted State usurpation and disregard by the Due Process Clause of the Fourteenth Amendment. But it is significant that these holdings were premised on a traditional hetero-normative view of marriage as a union between male and female persons.
In United States v. Windsor, the Court held that DOMA in limiting marriage to male female unions was unconstitutional because it trampled on “sexual and moral choices protected by the Constitution. Constitutionally afforded “sexual and moral choices” however cannot be limited to individuals who identify as homosexuals, but must be extended to the heterosexual, the bisexual and the asexual. Within these general categories of sexual orientation are sub groups including pedophiles, and zoophiles, who may seek further redefinitions of marriage to accommodate their sexual orientations and proclivities. Prohibitions against polygamy, bigamy, incest and bestiality may not survive along side a determination that sexual orientation is a protected constitutional right.
Illustratively, a bisexual individual could argue that his or her sexual orientation mandates that States grant marriage licenses for three person marriages or permit two concurrent marriages to persons of different sexes. This argument could have merit if sexual orientation is a protected constitutional right mandating that States redefine marriage to accommodate varied and non normative sexual orientations.
*Alice Travis is a veteran broadcast journalist and the author of Cognitive Evolution: the Biological Imprint of Applied Intelligence. This essay is a vehicle for open conversation with no intent to disparage or demean protected lifestyle choices of fellow human beings.