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

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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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