OPINION:
Last week, the U.S. Court of Appeals for the 10th Circuit, seated in Denver, heard oral arguments on a very significant case in the national debate over the definition of marriage. That case, Kitchen v. Herbert, was an appeal of Judge Robert Shelby’s district court’s decision striking down Utah’s marriage amendment and related statutes.
Current Utah law defines marriage as the union of one man and one woman. There is a good chance that Kitchen and a similar case from Oklahoma will be the vehicles by which the U.S. Supreme Court next year decides the constitutionality of state laws that define marriage as the union of only one man and one woman.
The plaintiffs were three homosexual and lesbian couples who wished to obtain a marriage license but were not able to do so because Amendment 3 of the Utah Constitution only recognizes natural marriage. The district court held that Utah, which reserves marriage to opposite-sex couples, had interfered impermissibly with the “fundamental right to marry” that the court asserted is guaranteed by the Due Process Clause of the U.S. Constitution’s 14th Amendment.
Under the Supreme Court precedent of Washington v. Glucksberg (1997), when determining whether a claimed right is fundamental, the court applies a two-prong test. First, there must be a “careful description” of the asserted right. Second, the claimed right, must be firmly rooted in “the Nation’s history, legal traditions and practices.”
In Glucksberg, the court described the claimed legal interest as a “right to commit suicide, which itself includes a right to assistance in doing so,” not a much looser categorization about choosing the time and place of one’s death, for example. Per Glucksberg, there must be a precise definition of the right and that right must be well grounded in American law.
The Supreme Court has recognized that there is a fundamental right to marry for all Americans. Consequently, the question before the court was not a loose one, such as whether there is a right to marry a person one loves. Rather, it is whether there is a right to enter into a same-sex marriage. Courts that have considered this question, with the exception of the district court in the Proposition 8 case (California, 2010) and the court in this case, have rejected the argument there is a fundamental right to homosexual marriage.
Judge Shelby tried to maneuver around this problem by arguing that Glucksberg was not applicable here because “the plaintiffs are seeking access to an existing right, not the declaration of a new right.” This analysis is in error. Overwhelmingly, courts have found that same-sex challenges along these lines are seeking the declaration of a new right.
As noted above, once the Glucksberg framework is employed, it is clear that there is no firmly rooted right to homosexual marriage in the American legal tradition. Nevertheless, the Kitchen court proceeded to hold that the right to marry covers same-sex unions and that limitations placed on that right by Utah, namely the opposite-sex restriction, could not be justified. This analysis should be overturned by the appellate court because it is clearly incorrect.
Additionally, the district court held that Utah law discriminates on equal-protection grounds. For example, Utah law differentiates on the basis of sex because it prohibits a person from marrying another of the same sex. However, at this point Judge Shelby made a more sweeping claim. He held that Utah marriage law fails to satisfy the most basic standard of rationality. No reasoned justification can be given for limiting marriage only to opposite-sex couples, the court asserted.
At a certain level, there is something crazy about such a claim, isn’t there? Are we to believe that for millennia, human beings were, for whatever reasons, incapable of realizing that there was nothing distinctive about maleness and femaleness?
Sexual complementarity and the ability to produce children together counts for little, apparently. More critical than physiology, our modern age is so ideologically conflicted that it is not politically permissible to acknowledge the emotional and psychological complementarity of the masculine and the feminine.
Poets have written of it with great feeling and little doubt. Any honest, self-aware person knows it to be true. Ultimately, these real differences between men and women make male-female parenting a superior social arrangement. Children need a father and a mother — the masculine and the feminine. That seems like one pretty rational argument to me.
Let us hope that the court in Denver and, ultimately, the Supreme Court of the United States can discard the blindness of this age and preserve natural marriage — an institution that reflects these most fundamental realities of human existence.
Chris Gacek is a senior fellow at the Family Research Council.
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