March 18, 2013
On March 26 and 27, the U.S. Supreme Court will hear oral arguments in two cases challenging the definition of marriage as the union of one man and one woman. In Hollingsworth v. Perry, they will consider the constitutionality of the definition as enshrined in the California state constitution by voters in that state when they adopted “Proposition 8” in 2008 (effectively reversing the decision of the California Supreme Court to impose same-sex “marriage” earlier that year). In Windsor v. United States, they will consider the constitutionality of the same definition of marriage being adopted for all purposes under federal law through the 1996 Defense of Marriage Act (DOMA).
In anticipation of those oral arguments, I am offering a series of blog posts with questions and answers related to the issue. Today, we look at the question of whether laws defining marriage as the union of one man and one woman deprive some people of the “right” to marry.
Q—Doesn’t defining marriage as the union of one man and one woman deprive homosexuals of a fundamental right?
The fundamental “right to marry” is a right that rests with individuals, not with couples. Although most states do not permit couples of the same sex to marry, homosexual individuals already have exactly the same “right” to marry as anyone else. Marriage license applications do not inquire as to a person’s “sexual orientation.”
Those who are dubious of such an argument may be operating on the false assumption that homosexuality is and inborn and immutable trait. However, many people who now identify themselves as homosexual have previously been in legal (opposite-sex) marriages. On the other hand, many people who previously had homosexual relationships have now renounced that behavior and married persons of the opposite sex. If we define a “homosexual” as anyone who has ever experienced homosexual attractions, then both of these scenarios represent “homosexual” individuals who have exercised their right to be legally married.
(Indeed, one of the principal plaintiffs in the Proposition 8 court case—a woman named Sandra Stier, who seeks to “marry” her partner, a woman named Kristin Perry—testified at trial that she had been legally married—to a man—for twelve years; and had two biological children with him. Stier testified that she only “learned” she was a lesbian “in my mid-thirties.” Even when pressed further by her own lawyer, at no time did she testify that she is now a lesbian in the sense of having an enduring pattern of sexual attraction to women in general—instead, the only evidence she offered of her current “sexual orientation” was the statement, “I have fallen in love one time and it's with Kris.”)
Because, in our culture, sexual attraction is generally considered an important factor in one’s choice of marriage partner, there is no question that defining marriage as the union of a man and a woman has a “disparate impact” on the ability of a person sexually attracted to the same sex to marry the person of his or her choice. (Legally, the question of “disparate impact” is separate from the issue of “facial discrimination,” which is absent from the marriage laws).
However, while every individual person is free to get married, no person, whether heterosexual or homosexual, has ever had a legal right to marry simply any willing partner. Every person, whether heterosexual or homosexual, is subject to legal restrictions as to whom they may marry. To be specific, every person, regardless of sexual preference, is legally barred from marrying a child, a close blood relative, a person who is already married, or a person of the same sex. There is no discrimination here, nor does such a policy deny anyone the “equal protection of the laws” (as guaranteed by the Constitution), since these restrictions apply equally to every individual.
Some people may wish to do away with one or more of these longstanding restrictions upon one’s choice of marital partner. However, the fact that a tiny but vocal minority of Americans desire to have someone of the same sex as a partner does not mean that they have a “right” to do so, any more than the desires of other tiny (but less vocal) minorities of Americans give them a “right” to choose a child, their own brother or sister, or a group of two or more as their marital partners.
Those who choose not to enter into a male-female union—whether because of their sexual orientation, or from any other reason—are not being denied the “right” to marry. They are, like those who choose celibacy, singleness, cohabitation, or polyamory, simply choosing not to marry—that is, choosing not to enter the type of relationship that is rationally defined as a “marriage.” They have every right to choose a non-marital lifestyle, even if it is one (like heterosexual cohabitation) that resembles marriage in some respects. What they do not have is a “right” to change the essential definition of marriage itself.