Building the Resistance to Same-Sex Marriage: The Fourteenth Amendment Does Not Mandate Same-Sex Marriage

Within the month, the nation will receive the opinion of the U.S. Supreme Court as to whether the U.S. Constitution requires all of the states to jettison their domestic laws and sanction same-sex marriage. Numerous federal judges have so ruled, and most states have simply yielded to those federal court decisions. In a few cases, beginning with Vermont and Massachusetts, state courts ruled for same sex marriage, and state officials have accepted passively those decisions as well.

Generally, courts have ruled for same-sex marriage using either the “due process clause” or the “equal protection clause” of the Fourteenth Amendment, or both. That raises a simple question: is it really possible that when the Fourteenth Amendment was ratified in 1868 the framers intended that it sanction same-sex marriage? Of course not. The U.S. Constitution says nothing about same-sex marriage. Then, how could the Constitution be manipulated to support a decision in favor of same-sex marriage? Well it has not been easy. The Constitutional case for same-sex marriage is pathetically weak — unless you adopt the notion of an “evolving” Constitution — which is, of course, the polar opposite of the notion of our “written” Constitution.

There are actually four cases, all from the U.S. Court of Appeals for the Sixth Circuit, which have been consolidated for decision in the U.S. Supreme Court — Obergefell, DeBoer, Tanco, and Bourke. If you would like to know more about how this case developed, a great deal of information, and links to all documents, is available on SCOTUSblog. The amicus curiae brief which we filed in the Sixth Circuit in support of traditional marriage is available, as is the amicus curiae brief which we filed in the U.S. Supreme Court.

The opinion by Judge Sutton of the U.S. 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).

Laymen 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.” William O. Douglas, The Court Years, p. 154 (Random House: 1980). 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 U.S. ___, 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. Indeed, during oral argument in the case of Hollingsworth v. Perry, Justice Scalia asked this very question to same-sex marriage champion lawyer Ted Olson:

Justice Scalia: “When did it become unconstitutional to prohibit gays from marrying?… Was it always unconstitutional?”

Ted Olson: “It was [un]constitutional when we — as a culture determined that sexual orientation is a characteristic of individuals that they cannot control…”

Justice Scalia: “I see. When did that happen?…”

Ted Olson: “There’s no specific date in time. This is an evolutionary cycle.”

Of course, a written constitution that is subject to evolutionary change is no longer a written constitution. A constitution that is always evolving provides no fixed guarantees for the rights of the people. If the “Due Process Clause” of the Fourteenth Amendment can morph into a mandate for homosexual marriage, then the “right to keep and bear arms” can become a right to call the police when attacked. Once we abandon the author’s meaning of a text, we are left treating the U.S. Constitution as poetry, asking “what does the Constitution mean to me?”

Unable to ground their challenge in the Fourteenth Amendment as written, the advocates of same-sex marriage have used an assemblage of fabrications, purportedly derived from this Court’s precedents, but without any support in fact or law.

One of the briefs in the Supreme Court asserted that the High Court has already established that “[t]he right to marry the person of one’s choice is a fundamental freedom.” The claim is patently false.

To the contrary, the Supreme Court has always assumed that marriage law was originally governed by the common law which required consummation between one male and one female. See Maynard v. Hill, 125 U.S. 190, 213 (1888). See also 1 William Blackstone, Commentaries on the Laws of England, 424 (Univ. Of Chi. Facsimile ed.: 1765).

The Court in Maynard explained: “though formed by contract … the relation of husband and wife, deriv[ed] both its rights and duties from a source higher than any contract of which the parties are capable, and, as to these, uncontrollable by any contract which they can make.” And “[w]hen formed,” the Court continued, the relation between husband and wife was “no more a contract than ‘fatherhood’ or ‘sonship’ is a contract.” Instead, marriage “partakes more of the character of an institution regulated and controlled by public authority, upon principles of public policy, for the benefit of the community.” Thus, it is just pretense to claim that the Supreme Court previously established the right “to marry the person of one’s choice.”

Any such claim is a total fabrication designed to hide the fact that at the time the nation was founded not only was same-sex marriage not legally sanctioned, but sexual relations between men constituted, as Sir William Blackstone declared, “the infamous crime against nature[,] a disgrace to human nature,” and punishable by death. 4 Blackstone’s Commentaries at 215-16.

In addition to this condemnation of “unnatural” sexual coupling, the English common law of marriage exclusively adopted the Biblical matrimonial order. First, the common law limited the relationship to one between “husband and wife,” that is, “baron and feme.” I Blackstone’s Commentaries at 421. And second, the common law made “voidable” any union between a man and a woman under the “canonical disabilities” of “consanguinity, or relation by blood; and affinity, or relation by marriage.” Id. at 422. Thus, it is wildly false for Petitioners to presume, as they have, that there is a well-established right to marry any person of one’s choice.

The same-sex marriage proponents now ask the Supreme Court to take the nation one step further away from our written constitution, by fundamentally changing the meaning of its text based on the will of a bare majority of five lawyers serving on this Court, rather than complying with the exclusive process for amending the Constitution, as set out in its Article V. Freed from textual constraint, Professor Lino Graglia has observed that:

[o]ver the past half-century the justices have chosen to make themselves the final lawmakers on most basic issues of domestic social policy in American society. These include issues literally of life and death … and issues of public morality…. In essence, the Court now performs in the American system of government a role similar to that performed by the Grand Council of Ayatollahs in the Iranian system…. [L. Graglia, “Constitutional Law Without the Constitution: The Supreme Court’s Remaking of America,” in “A Country I Do Not Recognize” (R. Bork ed., Hoover Press 2005).]

Nearly two decades ago, Justice Scalia warned:

[t]his Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that “animosity” toward homosexuality … is evil. [Romer v. Evans, 517 U.S. 620, 636 (1996) (Scalia, J., dissenting).]

And, exactly as Justice Scalia predicted in Romer, the American people have seen a flurry of judicial opinions with “no foundation in American constitutional law” overturning laws which were “designed to prevent piecemeal deterioration of the sexual morality” desired by the People. These court opinions together constitute what he described as “acts, not of judicial judgment, but of political will.” Id. at 653.

As such, they are not just “bad law,” but as Blackstone stated, they are “not law” at all.

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Herbert W. Titus taught Constitutional Law for 26 years, and concluded his academic career as the Founding Dean of Regent Law School. William J. Olson served in three positions in the Reagan Administration. Together they have filed over 80 briefs in the U.S. Supreme Court, and dozens more in lower courts, addressing important public policy issues. They now practice law together at William J. Olson, P.C. They can be reached at [email protected] or twitter.com/Olsonlaw.

This article is part of a series on “Building Resistance to Same-Sex Marriage.” Should you want to help support this important work, contributions may be made to the U.S. Justice Foundation.

Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.

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  • Keepdad

    In my opinion the Constitution does not speak to the matter of marriage whether it is between a man and a woman or same sex. That right/privilege seems clearly to be left to the states or the people; as per the little used or acknowledged 9th and 10th amendments. If, say, Massachusetts decides to recognize gay marriage, so be it. If Alabama doesn’t recognize gay marriage, so be it. The Federal government should remain silent on this matter.

  • Herb Titus…: “The Constitution does not guarantee the
    right to enter into a same-sex marriage. Indeed, no provision of the
    Constitution speaks to the issue.”

    Ah! There’s the problem.

    The late 18th-century founders’ violations against Yahweh as sovereign and His moral law as supreme were sins of both commission and omission.

    Their sins of commission are evidenced in that there is hardly an Article or Amendment that’s not antithetical, if not seditious, to Yahweh’s sovereignty and morality. For evidence, see free online book “Bible Law vs. the United States Constitution: The Christian Perspective,” in which every Article and Amendment is examined by the Bible. Click on my name, then our website. Go to our Online Books page and click on the top entry.

    However, even if this were not true, their sins of omission alone destined America to the precipice of moral depravity and destruction she presently finds herself precipitously teetering on:

    “…3. Every problem America faces today can be traced back to the fact
    that the framers failed to expressly establish a government upon
    Yahweh’s immutable morality as codified in His commandments, statutes,
    and judgments. (Would infanticide and sodomy be tolerated, let alone
    financed by the government, if Yahweh’s perfect law and altogether
    righteous judgments were the law of the land? Would Islam be a looming
    threat to our peace and security if the First Amendment had been
    replaced with the First Commandment? Would Americans be in nearly as
    much debt if usury had been outlawed as a form of theft? Would crime be
    as rampant if “cruel and unusual punishment” had not been outlawed and
    criminals were instead punished with Yahweh’s altogether righteous
    judgments? Would we be on the fiscal cliff if we were taxed with a flat
    increase tax rather than a graduated income tax?)….”

    For more, see our Featured Blog Article “5 Reasons the Constitution is Our Cutting-Edge Issue,” found at the top of our home page.

  • Dowhatsrigh

    Ok, if they want to rule that the sodomites are entitled to marriage under the due process clause” or the “equal protection clause” of the Fourteenth Amendment, or both. Then I demand that I be equal also. I demand that I receive all benefits that the government provide. I want a welfare check each month. I want the government to help pay my mortgage and or rent under section 8. I want the government to pay the biggest part of my medical insurance, I demand free juice under the WIC plan. I demand that I get a free Obama phone with all those free minutes. I also demand that my children get the free scholarships given to certain people so that they will have a equal chance at education. I demand that part of my heating bill be paid for by HEAP, and I demand that every citizen receive all of these and the other hundred benefits paid by the government. To give these thing to some make the rest unequal in obtaining the good live. That also denied me the freedom to lie around and do nothing. Instead, I have to go to work to pay my way, where is the equality and due process in that? If the sodomites can demand that I bake a cake for them, why can I not demand that they advertise in their place of business that homosexuality is a sin? Equal protection and due process are to be such the same things must be given to all people.

  • marysmith

    You know the argument used to be that gay couples could not get all the benefits as married, such as medical care for those they loved- you can appoint someone to be your medical power of attorney. As far as better tax situations go when filling out your taxes – better to be single as the progressives have seen to that!!! I think that if gay couples want to marry that it be referred to as something other than marriage!!! Personally I do not care about their living together and I wonder why they are not happy with that??? Seems like these groups always want to challenge the law. And I might say that TV is getting ridiculous with all the gay kissing and programs. We should start to protest the companies that support these programs. Where have our rights gone???