Is Gay Marriage the New Dred Scott?

“This is not a complicated case.”

That’s how US District Court Judge Timothy Black began his 15-page ruling on a “gay marriage” case last month, a ruling that recalls both the Fugitive Slave Act and Dred Scott.

Judge Black’s decision orders the State of Ohio not to register a death notice for a still-living Cincinnati man unless it lists him as married and lists another man as his surviving spouse. The ruling is based on the state’s custom of accepting marriages that would not be valid in Ohio if they are legally contracted in another state. Because Ohio recognizes marriages contracted in other states with different rules on whether first cousins can marry or what age young people can marry, Judge Black, said the state cannot refuse to recognize a legal “marriage” between two people of the same sex.

To do so would violate the equal protection clause of the US Constitution, Black ruled.

The case, Obergefell v. Kasich involves two men from Cincinnati whose unusual “wedding” was heralded by the city’s major newspaper in a combined feature story/editorial that also served as the paper’s flagship for championing “gay marriage.”

According to the July 14 story/editorial, Jim Obergefell and John Arthur have been devoted to each other for more than 20 years. Mr. Arthur is in the final stages of ALS and being cared for in the couple’s home. Although “gay marriage” has been legal in Maryland for more than a year and although one of the men’s aunts became “ordained” by an online church that ordains anyone who wants to solemnize marriages so that (again, according to the Enquirer story) she could officiate for them, the two men only decided to “marry” this spring, after the Supreme Court’s decision on the DOMA case. Because of Mr. Arthur’s fragile medical condition, the pair required a special medical flight (paid for by donations, according to the newspaper account) to a Maryland airport, where they were “married” in an eight-minute ceremony inside the plane and then flew home.

“There are economic arguments in favor of ‘gay marriage’, as many large companies prefer an environment in which all their employees enjoy the same rights,” the Enquirer piece concluded. “There is the argument that society benefits when it encourages loving, committed relationships and helps them flourish… But we believe this is the strongest argument of all: That couples who are already fulfilling the responsibilities of marriage, caring for each other in sickness and in health, should enjoy the privileges of marriage as well… They should be able to marry in the presence of family and friends, no matter where they live, and finally feel like full citizens no matter whom they love.”

Within days, a suit about the death certificate had been filed in federal court and within days after that (because of Mr. Arthur’s critical illness) injunctive relief had been granted. While the Enquirer followed the story with approval, it failed to note who paid for the suit, how the prominent (and presumably expensive) lawyer the paper described as a “civil rights attorney” got involved, or the relationship between the attorney and the judge.

Alphonse Gerhardstein, a principal with Gerhardstein & Branch Co. LPA, is Planned Parenthood of Southwest Ohio’s lawyer,  and Judge Black is a former director of Planned Parenthood of Southwest Ohio. Mr. Gerhardstein’s successful cases have included reversing a state ban on partial birth abortion and collecting damages for a demoted “transgendered” police sergeant.

The conclusion that Obergefell v. Kasich was meant to be a test case is difficult not to make (although the Cincinnati Enquirer has declined to make it). As a swing state considered to be key in national elections, Ohio is sure to be a major battleground in the war over “gay marriage,” especially as the state’s constitutional amendment defining marriage as between a man and a woman is up for repeal this fall.

Indeed, Judge Black makes the conclusion himself, in his own ruling. Although the case does not establish a general rule for the state (it’s limited only to Mssr. Obergefell and Arthur) Judge Black says he made it because he thinks that banning same-sex marriage will soon be ruled unconstitutional but that Mr. Arthur will not live to see it:

The Supreme Court held that the federal Defense of Marriage Act (“DOMA”), which denied recognition to same-sex marriages for purposes of federal law, was unconstitutional, as it denied fundamental fairness and equal protection of the law to gay citizens. While the holding … is ostensibly limited to a finding that the federal government cannot refuse to recognize state laws authorizing same sex marriage, the issue whether States can refuse to recognize out-of-state marriages is now surely headed to the fore. Indeed, just as Justice Scalia predicted in his animated dissent, by virtue of the present lawsuit, “the state-law shoe” has no dropped in Ohio.

The problem for Judge Black, and for Ohio, is that Dred Scott wasn’t a complicated case, either. The Fugitive Slave Act of 1850 (later upheld by the Supreme Court in 1859) had already established that, slavery being legal in some states, all states and territories were required to capture escaped slaves and return them to their owners, regardless of their own laws. When Dred Scott — a slave who sued for his freedom and that of his wife and children based on their having lived in free territories — made it to the highest court the legal principles and precedents were anything but difficult. In 1857 the Supreme Court ruled that slaves were not citizens but property, and therefore all states had to respect the property rights of their owners or violate the Fifth Amendment. Both court decisions were logical, consistent with the law — and utterly wrong.

If the principles behind a law are wrong, the logical and legal consequences of that law will be wrong as well. By redefining marriage as something it isn’t, the state of Maryland and the other states that have legalized “gay marriage” have made it an inevitable legal conclusion that all other states and US territories must legalize it.

But just as it was wrong to do so with slavery, the Supreme Court was wrong to do so with the DOMA case and will be wrong to do so with the cases that will follow (this case, perhaps). Marriage is not, as the Cincinnati Enquirer opined, all about ensuring that anyone can get married to anyone else “no matter where they live and no matter whom they love.” Mssrs. Obergefell and Arthur are American citizens right now. They are entitled to all the rights of American citizens, to love whomever they wish,  and to live in any arrangement they choose.

What they are not entitled to do is redefine marriage. Their devotion to each other is admirable, as all devotion is, but it is not an essential part of marriage. It is not a requirement that people who marry like, respect, or even know each other before — or after — the ceremony that binds them. A couple remains married even if they detest each other, betray each other, or don’t live in the same residence or even the same country. And neither is a deep, inspiring devotion limited to spouses; it’s found between parents and children, brothers and sisters, aunts and nephews, teachers and students, doctors and patients, and all sorts of other people — including, as in this case, some same-sex couples.

The purpose of marriage is not to reward devotion or bestow legal benefits. Those things do accrue to married couples, but as consequences of, not as, the real purpose of marriage. The purpose of marriage is, and always has been in every known culture on earth, to unite children with their mothers and fathers and to the extended families of both.

Arguments about state and federal law, constitutional amendments, and emotions all miss the point. It’s the purpose of marriage, and nothing else, that must be kept at the forefront of all discussions about redefining marriage.

The Enquirer story introduces two real men, one of whom is dying. It offers no proof for their mutual devotion but there is no reason to doubt it, or the love of their families and friends, or the grief of Mr. Obergefell as he has the great privilege and agony of caring for someone he loves in his final illness. But those deep and real feelings are not, as the Enquirer editorial board seems to think, a slam-dunk argument that marriage should or even can be changed. It is not an argument at all.

As Judge Black said, this is not a complicated case. Two people have asked for something they cannot have. All the laws, lawyers, and judges in the country could not make slavery right as well as legal, and all the the civil rights lawyers, laws, and judges in the country cannot change what marriage is. It is not discrimination or hatred to say so. It’s simply the truth.

Gail Finke

By

Gail D. Finke is an author and mother living in Cincinnati, where she writes for The Catholic Beat at Sacred Heart Radio.

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  • colcarpenter

    Yes Gail, the purpose of marriage is as you say, “to unite children with their mothers and fathers…”. However, the problem with Catholics using this line to argue against Gay marriage is that the Church, by the way she enacts Canon Law, shows that she really isn’t that concerned about the rights of children at all. Hence the Church, with a straight face, will declare a marriage between a Catholic and a non-Catholic celebrated outside of the Church, as being not a marriage at all, thus giving such a couple the “moral certitude” that breaking up that family unit is okay in God’s eyes because it was never really a marriage in the first place.

    The reality is that until the Church addresses her own failings with regard to the practice of marriage and the rights of children to be raised by their own mother and father in a stable family environment, Catholic opposition to Gay marriage will always come across as being driven not by a concern for children, but a dislike of gays.

    Maybe that’s why we keep losing.

  • andrea gregorio

    I find it tiresome to read the same intellectually bankrupt arguments rehearsed and re-rehearsed time and time again. Authors like Gail Finke demonstrate their ignorance of how definitions and understandings of marriage have changed constantly over thousands of years of human history. They have now changed again, as part of that long trajectory. Catholics would do well to accept this objectively demonstrable fact and understand that we are talking about civil marriage and not the enactment of the Sacrament of Matrimony which is the Church’s preserve and which it can bestow or withhold according to its (current) tenets of moral theological reasoning. The primary purpose of marriage as it is understood today is NOT about children, it is about the union of two people who love each other. If that union secondarily results in children or if it does not, then that is good – although we must qualify ‘good’ in this context with the observation that we now populate the globe with an unsustainable population of 7 Billion people and given that human beings are the single greatest source of carbon. The obsession held by the Church with fertility is as unnerving as it is absurd. We are called to fill the Earth (which we most certainly have done) and then to subdue it. This means good stweardship of which contraception and family planning are essential parts. Scientists increasingly recognise that homosexuality is an intrinsic part of Nature’s own population control and should be considered solely in the same context. No amount of placing gay marriage in inverted commas, Mrs. Finke, will alter this fact and change the inexorable course of ensuring the complete and unequivocal equality of LGBT people with their hetersoexual counterparts in the Society we all inhabit and which we all contribute to in our own ways. I sugges that the “author and mother” immerse herself into some serious historical and scientific research on the matter before displaying her bigotry, bigotry which is masquerading behind Catholic principles of moral theology. Catholic churches are emptying and we must ask why. A complicated matter, involving the destructive Vatican Council II, but also having aetiological roots in outdated tenets of moral theology and scientific understandings of human sexuality (vis a vis current science). The Catholic obsession with the pelvis need radical revision!

  • Fred Marion

    So well put Gail! Keep up the good work.

  • DYoung

    “The primary purpose of marriage as it is understood today is NOT about
    children, it is about the union of two people who love each other.” The primary purpose of a Sacramental Marriage IS children. Any other marriage is NOT about the union of two people who love each other, it’s about money. Both the DOMA and the Ohio case show that a marriage is not needed for two people to be united to one another for a long time. So why get married now, money.

    As for saying Mrs. Finke is a bigot. A bigot is, “a person who is obstinately or intolerantly devoted to his or her own opinions and prejudices; especially : one who regards or treats the members of a group (as a racial or ethnic group) with hatred and intolerance” I am sure that Mrs. Finke does not hate homosexuals, that would be against her Catholic faith. So because she finds some of their actions offensive, and has the courage to express her opinion, she is a bigot? That doesn’t adhere to the definition. On the other hand, it is obvious that by you calling Mrs. Finke a bigot shows that you are obstinately devoted to your own opinions. You also seem to be very intolerant to anyone who believes in the Catholic church and its teachings. Bottom line, name calling is not necessary or helpful in any discussion.

  • Fred Marion

    DYoung ==> So well put.

  • william mcintosh

    Regarding the alleged filling of the earth “which we most certainly have done”
    I find this one of the most absurd statements in your reply to Gail Finke’s article. You could stand the entire world shoulder to shoulder in part of Rhode island and still have lots of space left over. Who are you kidding Andrea? marriage may have had some changes over the centuries but it has always beeen between members of a different sex. I find the gay movement full of insidious destructive people. Gay people who want same sex marriage seem to want to subjugate. You will get a war which in part is what I think gays want. Do you also want to rape and humiliate millions of Christians? I dont know if you do Andrea but I think this is what many gays lust for. How evil! Sodom and Gommorah’s destruction will come again.

  • David Alexander

    As Pope Benedict XVI taught, “Over the pope as the expression of the binding claim of ecclesiastical authority there still stands one’s own conscience, which must be obeyed before all else, if necessary even against the requirement of ecclesiastical authority. Conscience confronts the individual with a supreme and ultimate tribunal, and one which in the last resort is beyond the claim of external social groups, even of the official church.” With Catholics’ strong ingrained sense of social justice, it is no surprise to me that the majority of Catholics have exercised these rights of conscience to support marriage equality. In fact, Catholics support marriage equality at a rate higher than any other religious group. I experienced this support first-hand when my husband and I adopted our daughter seven years ago and I received nothing but support from the administration, faculty, and staff at the Baltimore Catholic school that I taught at for ten years. While I have since left the school, it left me with a very positive regard for Catholics. While I have respect for Catholics that feel bound to follow the Church’s teaching on this issue, it is important to keep in mind that these Catholics are in a shrinking minority. I pray that one day they, too, will have the humility to consider that the Holy Spirit works in ways that none of us understands.

  • David Alexander

    As Pope Benedict XVI taught, “Over the pope as the expression of the binding claim of ecclesiastical authority there still stands one’s own conscience, which must be obeyed before all else, if necessary even against the requirement of ecclesiastical authority. Conscience confronts the individual with a supreme and ultimate tribunal, and one which in the last resort is beyond the claim of external social groups, even of the official church.” With Catholics’ strong ingrained sense of social justice, it is no surprise to me that the majority of Catholics have exercised these rights of conscience to support marriage equality. In fact, Catholics support marriage equality at a rate higher than any other religious group. I experienced this support first-hand when my husband and I adopted our daughter seven years ago and I received nothing but support from the administration, faculty, and staff at the Baltimore Catholic school that I taught at for ten years. While I have since left the school, it left me with a very positive regard for Catholics. While I have respect for Catholics that feel bound to follow the Church’s teaching on this issue, it is important to keep in mind that these Catholics are in a shrinking minority. I pray that one day they, too, will have the humility to consider that the Holy Spirit works in ways that none of us understands.

  • droodlebug

    Nice article Gail. I think the reason we are losing this battle has more to do with the wide acceptance of contraception, although I think colcarpenter makes an excellent point regarding the churches challenges with how marriages/annulments have been dealt with. People who accept contraception have real difficulty in accepting that marriage is all about children. Somehow they just can’t see it. I’ve had these discussions many, many times with otherwise educated people and they don’t seem to be able to register that a cohesive society requires intact families, and that accepting gay marriage, like no-fault divorce, is a true injustice to children. There is a spiritual darkness here that runs very deep and it will require great sacrifice to begin to reverse it. Prayer & fasting is needed here.

  • droodlebug

    Nice article Gail. I think the reason we are losing this battle has more to do with the wide acceptance of contraception, although I think colcarpenter makes an excellent point regarding the churches challenges with how marriages/annulments have been dealt with. People who accept contraception have real difficulty in accepting that marriage is all about children. Somehow they just can’t see it. I’ve had these discussions many, many times with otherwise educated people and they don’t seem to be able to register that a cohesive society requires intact families, and that accepting gay marriage, like no-fault divorce, is a true injustice to children. There is a spiritual darkness here that runs very deep and it will require great sacrifice to begin to reverse it. Prayer & fasting is needed here.

  • DYoung

    From what I have found Pope Benedict XVI never said that. Joseph Ratzinger
    did say that back in 1967. I suggest you read his “Conscience and Truth” (http://www.ewtn.com/library/curia/ratzcons.htm) which was written in 1991. (A little more recent) In it he talks about how he did not take into consideration the formation of conscience which people should follow.
    Pope Benedict XVI did reiterated Catholic doctrine that homosexuality is a
    “strong tendency ordered toward an intrinsic moral evil,” an “objective
    disorder.”

  • Eric Peters

    Oh, I see the problem. Ms. Finke has gotten herself a bit confused. Perhaps it might help her to note a simple fact about the laws in every state thus far that has adopted recognition of gay marriage: not one of those states requires child-molesting Roman Catholic priests to marry or even provide for the children they rape– no matter how actively the so-called “princesses of the church”– your bishops & cardinals– participate in covering up for your church’s chosen & ordained rapists or perpetuate the problem by disguising your robed rapists again as priests and sending them– like a pig in a poke (get it?)– to unsuspecting parishes full of oh-so-fun CYA Catholic youth groups. So. . . no real threat there, Finke.

  • QuoVadisAnima

    This is a mischaracterization of what an annulment is – it does not declare that “it was never a marriage in the first place”, but that the conditions necessary for a SACRAMENTAL marriage were not met. In essence, a physical marriage or a natural marriage may have existed between the two, but there was a spiritual defect. (BTW, a marriage between two Catholics can also be declared to have not been a sacramental marriage so I’m not sure why you placed that emphasis on non-Catholics?)

    The Church always encourages parents to put the needs & interests of the children first, but that doesn’t mean that individuals within the Church always handle things as they should either – that is true for those who counsel and judge the couple, but that is also true for the couple as well since the counsellors and tribunal members can only act on the information they have been given by the two.

    There are some problems within the annulment process, but it needs to be looked at with informed honesty. For example, it is true that the US has a scandalously high annulment rate (and I distinctly remember John Paul II calling them on it), but how much of that is due to the tribunal and how much of that is due to the defective catechesis, not to mention immaturity, of the laity?

  • Gail Finke

    I am surprised by the sheer number of things you think you know everything about, from the history of marriage in the world to the state of my regard for my fellow human beings. I have quotation marks around the words “gay marriage” because a) many Catholic publications prefer to use that style, and b) there is no such thing. As I pointed out above, gay Americans have exactly the same rights as everyone else does, which include living with and loving whoever they like. But no one has the right to redefine marriage. The “current understanding” of marriage is not the point. Marriage has a definition, whatever our current understanding of it is. I’m afraid you’re mistaken if you think it has ever changed. Various customs about marriage have changed, as has what personal benefit one hopes to get from it, but marriage itself — the union of one man and one woman — has not. The Catholic Church is not obsessed with the pelvis — the Catholic Church is, I think, the only institution that ISN’T. Western culture’s demand for all sex, all the time — whoever, wherever, and without any consequences — is a strange anomaly in human history. I have nothing at all to say about your population and ecological theories, which I do not ascribe to, or to your personal version of moral theology, which you can’t expect anyone else to ascribe to as it is the result of your own deliberations. But your insulting descriptions of the understanding of marriage held by the entire world throughout all time as “morally bankrupt” and of people who believe what everyone in the entire world has always believed until less than 20 years ago as “bigots” cannot be taken seriously.

  • Richard III

    Did you know that Dred Scott and Roe v. Wade were both decided by the same majority vote?

  • Richard III

    So children don’t have a right to a mother and father bound to them and to each other until death if that right in any way interferes with what the grown-ups want?

  • Richard III

    And Vatican II was not destructive or the root of all evil. What has happened was that several clergy and laity ignored or severely misinterpreted its teachings, thereby fomenting disaster.

  • Richard III

    How can contraception be good stewardship if it prevents and sometimes kills children, causes all kinds of health problems for women (weight gain, reduced sex drive, irritability, increased risk of breast cancer and deadly blood clots), pollutes water, and messes with the reproduction of fish and frogs?

  • colcarpenter

    Have you ever known the Church to refuse to remarry a person who has had an annulment because the Church considered it was not in the interests of the children born of the first annulled marriage? I haven’t.

    If the Church was truly interested in helping to maintain the natural strong bonds between children and their natural parents she would take more interest in the rights and welfare of children born in annulled marriages.

    How do children born in annulled marriages benefit from having one or both of their parents remarry other people? And why would the Church want to soil her reputation by giving her blessing to such remarriages?

    Although I don’t approve of Gay Marriage, and less so Gay people producing children, I think the Church has much to do to improve her own attitude towards marriage and children before she can be taken seriously as a critic of Gay Marriage.

  • QuoVadisAnima

    I don’t know that you & I are really in serious disagreement on the need to better prepare & support couples entering into marriage & keeping that marriage strong, but I am just trying to explain that you are misunderstanding the annulment process and what it does – and does not – mean.

    An annulment has no actual effect on the children because it changes nothing; an annulment is not a “Catholic divorce”. It simply states that a tribunal has looked at the marriage *with the information at its disposal* and deemed it to be defective in some sacramental dimension.

    An obvious example would be like that of one of my sisters who married a man who did not reveal to her that she was his 4th wife or that he had a disabled child who he wasn’t even supporting. Not surprisingly, she had no difficulty securing an annulment.
    I have had at least 2 devout Catholic friends whose husbands walked out on them and the children with virtually no warning. Was the fatal flaw there before they tied the knot or did it develop after? In such cases an annulment would not under any circumstances tell the husband that it was okay for him to walk out on them; it simply lets the wife know if she is legitimately bound to the cad or not.

  • jenny

    “‘…..’How do children born in annulled marriages benefit from having one or both of their parents remarry other people?…”
    The children benefit by finally escaping a ” immature/ irresponsible ” parent ( or maybe a potential criminal/ rapist).

  • colcarpenter

    Jenny, nobody needs an annulment or remarriage to protect a child from an irresponsible or criminal spouse. There is nothing wrong with separating from a spouse who poses a serious threat to the welfare of your children. I would suggest that the practice of introducing a third party (i.e. a second husband) into the picture will only make worse an already bad situation.

    If you need to separate from your spouse to safeguard the welfare of your children the only morally right path to take is not to re-partner. Unless of course you think marriage is primarily about having your wants and desires fulfilled and not the rights of your child.

  • colcarpenter

    QVA, a declaration of annulment, at least as the whole annulment – remarriage situation is played out in the English speaking world, changes much.

    In the thinking and practice many Catholics an annulment translates to a right to remarry. My understanding of Canon Law is the legally it doesn’t, but in the twisted culture that has developed within the Church in practice a right to remarry after an annulment has become the norm.

    Now even if the Church wants to “pretend” that an actual marriage between a man and a woman that produced children was never really a marriage, the fact remains that both parties to that “marriage” still have certain moral obligations to each other and their children that realistically cannot be fulfilled if one or both “spouses” remarry. Yet the reality is that the Church will give her blessing to remarriage after annulment and in doing so, completely disregard the rights of those children born from the first marriage to maintain as normal a relationship with both their parents as possible.

    QVA, please tell me, how does a parent still be a parent to their children if their former “spouse” who has custody of their children remarries? What for example is five year old Billy to think when daddy has been replaced with mummy’s new husband, and all with the blessing of the Church.

    Wouldn’t it be better for the Church to put a ban on marriage after annulments, at least until all children from the first marriage reach adulthood? After all, the granting of an annulment changes much.

  • jenny

    Many times, too many times, the husband need an annulment with only idea in mind to re-marry, leaving his children out of picture.
    For a woman, too many times, the annulment is sought after an abusive relation where children have been traumatized by the father, and left in the care of the mother with NO financial/emotional support from the abusive father; therefore, the woman , with no $$$$ and a lots of children crying day and night for bread and shoes , decides to re-marry , in order to support “HIS” children; What about this scenario? Let’s keep in mind that even if the reason for the woman to re-marry is not 100% out of love, yes, the woman and the new husband are both willing to take the responsibility of additional children, beside carrying for the existing children.
    By the way, during John Paul 2, Vatican expedited the annulment process, shortened it from 10-15 years to 3-5 years, in order to accommodate these kind of situations when the mother, left with a bunch of hungry children , was seeking support from a new husband. The annulment seems to have pretty much different reasons for men, as opposed to women, and this is because many times, the husband walks away with no responsibility for the children he procreated.

  • jenny

    “…… rights of those children born from the first marriage to maintain as normal a relationship with both their parents as possible….”
    My point here is: is order for the children to maintain a normal relation with both parents, they , the children need food and education first of all, to stay alive; and while one parent , the aggressive, the bad, the “criminal” one does not care the burden of raising the children , the other parent needs freedom to re-marry, craying out to God to get a “new, better parent” for the children, as much as this is possible.

  • Gail Finke

    You make some very good points but you are forgetting one thing — people seek annulments after they have already broken their families apart, and in some cases many years afterward. They rarely if ever seek them as permission to break up their families (it does sometimes happen in an abusive marraige). I will not defend the number of annulments granted in this country (one understandable reason is simply that we ask for more than any other countries do) but I think annulments are a symptom of a problem, not the actual problem. It does hurt our case very much that for years we’ve pretty much gone along with the rest of the world by not standing up for marriage.

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