Questions Avoided in Same-Sex Marriage Legal Cases

John C. Rankin

(January 16, 2013)

In my prior set of articles, I am seeking to note that the law is often decided by the human elements, and not just legal principles. But too, genuine suffering can also lead to bad law that only multiplies the suffering more widely.

In view of the nature of the legal arguments for same-sex marriage, there are three central realities we need to address.

First: Same-sex marriage is being advanced as a “fundamental” or “basic” human right, with no basis in constitutional history. In the groundbreaking 2003 Goodridge case in Massachusetts, this claim was made, while referring to “PART the FIRST” of the constitution: “A DECLARATION of the RIGHTS of the Inhabitants of the Commonwealth of MASSACHUSETTS.”

Goodridge drew from a text – composed by John Adams – that spoke of unalienable rights in the context of worshiping God. The structure of Goodridge sought to align same-sex marriage as closely as possible to being “unalienable.” This is a term that refers to that which cannot be alienated, cannot be taken away by the government unless we first violate someone else’s unalienable rights. Unalienable rights are unalienable because they come from a Source greater than human government. Marriage itself has never been an unalienable right.

Rather, unalienable rights are defined as life, liberty and the right to own property. Marriage – between a man and a woman – is not listed as a right in the “DECLARATION of the RIGHTS.” The government is designed to protect what we all have naturally.

If “same-sex marriage” is a “basic” or “fundamental” right, it cannot be found here. And indeed, the government does not owe every person a spouse, as they owe all citizens the protection of their lives, liberties and properties. Marriage is a liberty chosen, with responsibilities, not a fundamental right.

At the federal level, unalienable rights – the same as iterated in the Fifth and Fourteenth Amendments – are celebrated in the Declaration of Independence as coming from the Creator. No wonder religion is in the middle of this debate. Yet – and this is critical – there is a glaring absence of a willingness to talk about the Creator, the Source of unalienable rights, on both sides of the debate. Why?

Second: Same-sex marriage directly threatens the religious, political and economic liberty of dissenters. A range of court decisions have wrestled with religious freedom being increasingly limited in the face of pro-homosexual laws. This homosexual agenda is real, and there has been pushback. But it is always lurking.

And third: Same-sex marriage rulings strenuously avoid trying to make the case of being “born homosexual.” The science gives no support here. Yet, if there were any such scientific evidence, it would be case closed in citing “equal protection” laws for homosexual persons in this and many matters.

In the three original and influential state court decisions legalizing same-sex marriage (Goodridge, Re: Marriage Cases and Kerrigan), this was not even attempted. In fact, along with a recent decision of the United States Court of Appeals, First District, the language of the 1965 Civil Rights Act, Title VII, requires the demonstration of an “immutable trait” in order to become a civil rights class. The same-sex marriage advocates have not even tried to prove this. Thus, the designation of homosexual” is subjective, and not an objective class of people to be protected as a group. Yet – and this is critical – this argument is also eschewed by opponents of same-sex marriage. Why?

Thus, there are two key issues being avoided: 1) unalienable rights given by the Creator, and 2) the question of immutable traits. By addressing these questions honestly, the case for same-sex marriage collapses.