By Tony Perkins
The U.S. Court of Appeals for the Sixth Circuit in Cincinnati will hear cases on Wednesday challenging the male-female definitions of marriage found in the constitutions of Tennessee, Kentucky, Ohio and Michigan. Each of those states had defined marriage as the union of one man and one woman, and each was declared unconstitutional by federal district courts in those respective states. The four cases have been consolidated into one appeal that will be considered by a three-judge panel of the Sixth Circuit.
FRC’s Senior Fellow for Regulatory Policy, Chris Gacek, commented on the appellate case in an opinion piece, “No Fundamental Right to Same-Sex Marriage,” for the Cincinnati Inquirer yesterday. To boil the argument down quite a bit, homosexual plaintiffs argue, among other things, that the constitutional protections of the Fourteenth Amendment include a “fundamental right” to enter into same-sex “marriages.” Unfortunately, courts have been buying this poor argument recently.
The U.S. Constitution requires two things for a right to be “fundamental.” The first is a carefully worded description of the asserted fundamental right. Second, such rights must be “deeply rooted in this Nation’s history and tradition.” The right must be “so rooted in the traditions and conscience of our people” that “neither liberty nor justice would exist if [it was] sacrificed.” Undoubtedly, the Supreme Court has found that there is a right to marry, but the Court was referring to the core concept of the male-female union recognized for millennia.
A loose definition like “being able to marry someone you love” is too broad and could include the union of multiple partners and other arrangements like those that are incestuous (e.g., a father and a son). In fact, the plaintiffs in these cases are already permitted to marry persons of the opposite sex, but they want the courts to legitimize a new social-sexual arrangement by declaring a “right” to same-sex “marriage.” And, this is a new right not the recognized right to marry as traditionally understood.
When this claimed fundamental right is accurately defined — it is clear that no such right exists. Same-sex “marriage” existed in no state before 2004. In fact, Google, Facebook, and the iPod are older. As such, it is clear that same-sex “marriage” cannot be deeply rooted in the traditions and conscience of Americans.
The Sixth Circuit needs to follow the law and reject imperious arguments that would whimsically overturn the electoral decisions of the citizens of those four states. They have already decided that marriage should be reserved to the union of one man and one woman. This was not a bizarre choice. In fact, it comported perfectly with the fundamental right that is recognized by the U.S. Constitution.
Tony Perkins is president of the Washington, D.C.-based Family Research Council. He is a former member of the Louisiana legislature where he served for eight years, and he is recognized as a legislative pioneer for authoring measures like the nation’s first Covenant Marriage law.
(Via FRC’s Washington Update. Tony Perkins’ Washington Update is written with the aid of FRC senior writers.)
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