The marriage front advances

Now that the Supreme Court has repealed DOMA, so that the Federal Government recognizes same-sex marriages where the people live in a state that does, obviously the next step is to have more states recognize them. As I said in a post at the end of last month, I thought the best way to proceed was to use an Article IV argument, and at least in some states (Pennsylvania and Ohio) this is how they are going. The Ohio case is of some interest because a couple came here, to Maryland, to marry. (This was a case of the sort that I thought was less likely to succeed; they were really Ohioans, but just went to a state where they could marry specifically for that purpose. So this will be a real test of how well the Art. IV argument works.) So far, a Federal District Court judge has bought the Art. IV argument. Will this case go higher? To the Supreme Court? Only the state of Ohio can decide — as they might appeal this courageous decision.

And yet, there are people who want to stand in the way. A post by Shane Vander Hart, entitled “Federal Judge Ignores Ohio’s Marriage Amendment,” seems to think Art. IV does not apply, because marriage between a man and a woman is something special:

This is a sad circumstance, no doubt, but yes Ohio can. They have a Constitutional Amendment that forbids marriage licenses to be issued to same-sex couples and for their marriages to be recognized in the state of Ohio. The Supreme Court, when it struck down the Federal Defense of Marriage, act did state that the definition of marriage has traditionally been up to states. Ohio doesn’t have to recognize marriages between cousins and involving minors if they chose not to, but the difference with those is that they are involving – one man and one woman. Judge Black is comparing apples to oranges.

This is exactly why the Federal Defense of Marriage act was passed so other states would not be forced to adopt another state’s redefinition of marriage. This is an example of why it would have been helpful for the U.S. Supreme Court to rule on California’s Proposition 8. Can Federal judges ignore or overturn state constitutional amendments? I’d say in most circumstances no they shouldn’t unless there is a compelling Constitutional argument that a person’s enumerated rights spelled out in the Constitution are violated. There is no right to redefine marriage or, frankly, even a right to a marriage license. I know some would argue the government shouldn’t even issue marriage licenses – I can sympathize with that viewpoint, but the horse is already out-of-the-barn on that. It’s instances like fuel that help make the case for a Federal marriage amendment if Federal courts continue to insert themselves.

States have always been able to determine their own marriage laws and issuing marriages licenses to one man and one woman is demonstrating equal protection under the law. Every man and every woman in states like Ohio have the ability to marry one (willing) spouse of the opposite sex – provided it’s not an incestuous relationship and they are not minors.

But in fact, the judge's decision rests, among other things, on the fact that Ohio has honored marriages performed in other states between first cousins (considered incestuous under Ohio law) and people who were considered minors under Ohio law! Mr. Vander Hart even quotes ABC News, although the actual source is the Associated Press:

In his ruling, Black said that historically, Ohio law has recognized out-of-state marriages as valid as long as they were legal where they took place, pointing to marriages between cousins and involving minors.

So Mr. Vander Hart is undermining his own argument by the last sentence of the quoted portion (which I emphasized in blue) of his post.

And, I note, Mr. Vander Hart uses the phrase “another state’s redefinition of marriage.” I don't understand how anybody is “redefining marriage,” when all they have done is open it up to a larger class of people. As I said on July 11,

[Michael] Geer (the president of Pennsylvania Family Institute) is, as conservatives try to do, defining this as a “redefinition of marriage”: but it is hardly a real redefinition; it is simply redefining who is eligible. When the vote was extended to 18 year olds, it did not “redefine” an election; it simply made more people eligible. This is no different.

Why do conservatives like Mr. Vander Hart think it is so important that same-sex couples not be afforded equal marriage rights? Well, it is telling that the blog on which he made the post has the subtitle “Stimulating Christian conservative news and commentary.” He is not just “conservative,” but his commentary is from a “Christian” angle. And there's the rub. No matter what Christians like to say, this is not “a Christian nation.” It is a pluralistic nation, with a First Amendment that recognizes all religions as equal — even atheism! Mr. Vander Hart wants to impose “Christian values” — and not just any sort of “Christian values,” but the values of his particular version of Christianity (since some Christian churches are willing to accept same-sex marriage!) — on all of us, regardless of our own religious values.

The one thing that no “Christian conservative” has been able to demonstrate to me is how allowing same-sex couples to marry affects, in any way, the rights of opposite-sex married couples. And that would be the only justification for restricting them.