NOM BLOG

Same-sex Marriage Is Not Mandated By the 14th Amendment

 

The core issue being examined by the U.S. Supreme Court in the case that seeks to impose same-sex ‘marriage’ on the nation, is whether the U.S. Constitution requires that marriage laws be gender-neutral. Two constitutional scholars examine this issue, and in a powerful and thoughtful piece, conclude that the case for redefining marriage is “pathetically weak”:

The opinion by Judge Sutton of the US Court of Appeals for the Sixth Circuit — upholding traditional marriage against five challenges in four states — begins with a remarkable observation that should have resolved the case in that once sentence, but did not. Judge Sutton points out that “[n]obody in this case ... argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage.” DeBoer v. Snyder, 772 F.3d 388, 403 (6th Cir. 2014) (emphasis added).

ThinkstockPhotos-78811350Laymen logically deduce that if the Fourteenth Amendment as written had nothing to do with same-sex marriage, that’s the end of the matter. After all, Justice Douglas succinctly described the Amendment in his autobiography: “The Fourteenth Amendment was passed to give blacks first-class citizenship.”

But for those lawyers who want unelected judges to set the public policy of our nation, it simply doesn’t matter what the Framers intended. And neither does it matter to many judges who are all too willing to give effect to their own political views. Discovering the “authorial intent” of the Framers is only a small part of their concern — a step they sometimes skip over entirely.

Recently, Justice Alito observed that “[s]ame-sex marriage presents a highly emotional ... question ... but not a difficult question of constitutional law.” [United States v. Windsor, 570 US, 133 S.Ct. 2675, 2714 (2013) (Alito, J., dissenting)]:

The Constitution does not guarantee the right to enter into a same-sex marriage. Indeed, no provision of the Constitution speaks to the issue. It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation’s history and tradition. [Id. at 2714-15.]

Therefore, Justice Alito explained that challengers to traditional marriage:

seek ... not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. [Id. at 2715.]

If we are now considering a new right, one could legitimately ask when and where did this new right come from.

You can read the full article via Aleteia.