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Posted on Nov 12, 2014 |

Mason Attorney on Sixth Circuit Marriage Ruling

Mason Attorney on Sixth Circuit Marriage Ruling

Photo by Peter Skadberg, courtesy FreeImages.

Photo by Peter Skadberg, courtesy FreeImages.

by Kenneth Craycraft, Jr.

A version of this essay appeared last week in the Cincinnati Enquirer.

Last Thursday’s Sixth Circuit decision upholding gay marriage bans in four states, including Ohio and Kentucky, exposes the larger question that this issue presents: Is the definition of marriage a legitimate exercise in line-drawing by state legislatures or popular vote? Or is marriage a fundamental right protected by the U.S. Constitution that no one should be permitted to abrogate?

Some will see the 42-page decision as a punt, or perhaps an exercise in judicial hand-wringing: The Court seems to concede that the tide of public opinion will eventually engulf the four states in the Sixth Circuit, such that the law will eventually be changed in the legislative chamber or at the ballot box. And, in view of other federal appeals courts’ decisions striking down same-sex marriage bans, the Sixth Circuit is well aware that it is teeing up the Constitutional question for review by the U.S. Supreme Court.

But it is not a punt. Rather, the decision honors the historic – and quite legitimate – role of tradition and community mores in the development of law and policy, while highlighting the thorny constitutional questions that this particular issue raises.

Fundamental right or unchangeable definition?

Proponents of same-sex marriage say it is a fundamental right, protected by the equal protection clause of the Fourteenth Amendment. In other words, no line should be drawn between marriage rights for same-sex and heterosexual couples. Opponents counter by saying that historical definitions of marriage, as well as important public-policy considerations, should be the basis of such laws; lines may be drawn.

But even framing the issue points out the vexing question that the Supreme Court will have to wrestle with when it reviews this decision: If marriage is a fundamental and inviolable right under the Fourteenth Amendment, why must it be limited to same-sex, otherwise non-related, couples? Why doesn’t the same constitutional principle apply to plural marriages? Or to otherwise closely related couples? Why not marriages between brothers and sisters? Uncles and nieces?

Proponents of same-sex marriage will not answer this question. They either say that it is a red herring or they call those who raise the question haters and homophobes. Same-sex marriage proponents will not answer the question because they cannot.

They cannot make an argument based on tradition or community mores against these various forms of “marriage,” because they claim that such arguments are not legitimate when they are used deny same-sex marriage. It would undermine their entire case, conceding even same-sex marriage to legislative or popular vote. And, of course, it would expose them to hypocrisy.

Nor can they make a public-policy argument, such as the problem of closely related people procreating. This problem is easily solved by temporary or permanent measures to prevent or end conception.

Are any definitions of marriage off limits?

Put simply, if the Fourteenth Amendment protects the right of same-sex couples to marry – and perhaps it does – there is no principled argument for why it doesn’t also protect a myriad of other kinds of “marriages.” This is not homophobia or hate; it is simply following the argument.

The Sixth Circuit has effectively passed that problem to the Supreme Court.

In a famous scene from Robert Bolt’s play A Man For All Seasons, Thomas More challenges a man who says that he would cut down all the laws in England to get to the devil.  More counters by asking, what would become of you when you need those very laws to protect you? If we eliminate laws to achieve something we want, we cannot be heard to lament when the same laws do not protect us from something we don’t.

Kenneth Craycaft, Jr.

Kenneth Craycaft, Jr.

Kenneth R. Craycraft, Jr., is a resident of Milford and an attorney with the Shade Law Group, LLC, Mason. A former professor of Moral Theology at St. Mary’s University in San Antonio, he is the author of The American Myth of Religious Freedom.

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