In Obergefell v Hodges the Supreme Court created a new fundamental constitutional right to personal identity, supposedly grounded in the 14th Amendment’s liberty and equal protection clauses. The Court then used this newly created liberty to invalidate state constitutions and laws truthfully defining marriage as the union of a man and a woman.
To accomplish its task, the Court erroneously equated its newly created liberty to that of a civil rights era case that really did established marriage equality. In Loving v. Virginia, the United States Supreme Court held that under the Fourteenth Amendment’s Equal Protection Clause, States must not ban interracial marriage. Loving affirmed the fundamental constitutional right of a man and woman to marry because “[m]arriage [between a man and a woman] is . . . fundamental to our very existence and survival,” (as the Supreme Court previously held in Skinner v. Oklahoma).
The current Court irrationally and unconstitutionally extended Loving to create a new Constitutional right to personal identity in the context of marriage, without any qualification whatsoever. Loving emphasized the importance of marriage to all Americans, in the true sense of the word. It did not re-‐‑define the word. If one redefines “marriage” to mean whatever anyone wants it to mean, it has no definition and is no longer useful as a bearer of meaning. Loving did not require this destruction of marriage. It did not hold that if prohibited conduct is defined by reference to a proclivity, then that prohibition violates the Fourteenth Amendment. Nothing in the Constitution authorized the Court to create a new fundamental right for certain individuals to call their alternative arrangements “marriage”— and to compel others who disagree to not only assent to, but contribute to, the support of that redefined institution.
Loving simply does not support the fashionable but mindless “marriage equality” slogan, which is ultimately standard-‐‑less and renders marriage equally meaningless for all. The inventors of this new “right” discarded the long-‐‑established and proper limits on marriage under State law and, acting as a super-‐‑legislature, replaced the traditional and rational definition of marriage with one that has no discernible limits. If “marriage” means fulfilling one’s personal identity choices regarding intimacy, as the justices insist, it is difficult to see how States could regulate marriage on any basis. If personal identity is the essence of marriage, then not only gender, but also number, familial relationship, and even species are insupportable limits on that principle, and they all will fall. For example, the Court required a re-‐‑definition of marriage according to sexual preference because not doing so was supposedly discriminatory. Is it not likewise discriminatory to not also allow bi-‐‑sexual individuals to marry two spouses of opposite sexes in order to fulfill their desired union for companionship? Indeed, both logic and the Court’s jurisprudence will be used someday soon to support the argument that it should be lawful for a pedophile to marry a child in order to fulfill his perverse desires. The Court’s initial rejection of marriage in Obergefell is not just a slippery slope -‐‑-‐‑ it is a bottomless pit. Yet the justices here essentially claim that their redefinition improves marriage by adding a necessary but currently lacking element of “equality” to it. This is certainly a clever ploy, for who can oppose equality? But that is all that it is, a ploy. It is not a valid point.
Prior to the Court’s ruling, marriage already had all the equality it could contain without destruction of its meaning, purpose, and proper boundaries. Prior to the Court’s ruling, any legally competent man could marry any legally competent woman, regardless of his or the woman’s race, religion, national origin, or even sexual preference, and vice versa. The problem the Court claimed to resolve was one that did not exist in the first place. True marriage equality already existed.
What the marriage redefinition activist justices actually intended was not equality but instead a self-‐‑indulgent form of inclusiveness that demands acceptance of a wide variety of sexual conduct that society has no interest in supporting and no obligation to support. And now that this “inclusiveness” camel has put its nose inside the marriage tent, marriage will not be a better tent; it will be trampled and destroyed.
Though they do not openly admit it, these “progressive” justices proffer a subjective view of the reality of marriage. But a subjective view of reality has as many realities as it has subjects. If everyone can define their own identity and say what marriage means to him or her, and the State must accede to that view, where will that lead us? What will the state of our society then be? Will it be the Utopia of freedom and growth that the “progressives” imply, or will it degenerate into chaos? That is not a chance that the Constitution empowered the Supreme Court to take; the Constitution reserves this choice to the people under Article V’s constitutional amendment provision.
Let us spell out the truth about this subjectivist argument as simply as we can. If someone wants to go bowling, they can go to a bowling alley with whomever they choose—a friend of the same or opposite gender, or five such friends, or a child (or their favorite pet, perhaps, in a more “enlightened” establishment). And they can all bowl together. But if that same entourage goes into a bowling alley and demands that they be permitted to “bowl” using pogo sticks, hula hoops, parasols, and buckets and buckets of whipped cream—but no balls or pins, because those offend their sensibilities—the proprietor will be completely justified in denying that request. He will not be denying them their fundamental right to bowl. He will not be unfairly discriminating against them or treating them like second-‐‑class citizens. He will not be manifesting “hate.” He will merely be telling them the truth: What they want to do is their business, but it’s not bowling. And if the truth offends their sensibilities, that is their problem, not his. They simply have no cause of action against him.
The plaintiffs’ plight in the Obergefell case was no different. They all had the fundamental right to marry. No one denied them that. And the Court should have said so. Instead, without any constitutional authority, it told the rest of the country that we must recognize their non-‐‑marital relationships to be the same as marriage.
Instead of protecting marriage, five lawyers wearing robes destroyed its true meaning. In doing so, the Supreme Court failed to adhere to its mandate to interpret the Constitution and avoid the temptation to unlawfully rewrite it in the name of what they personally think is “progress”.
On behalf of a coalition of over 25,000 African-‐‑American churches and ministries, Professors Wagner and Kane authored an Amicus brief in the marriage cases before the Supreme Court.
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