TO WIN THE MARRIAGE DEBATE:
THE FLAW IN THE NINTH CIRCUIT'S (AND MOST EVERYONE ELSE'S) REASONING
By: Selwyn Duke
The big news on the culture-war front is a federal courts striking down of
Proposition 8, Californias constitutional amendment protecting marriage. In a
two-to-one ruling, the United States Court of Appeals for the Ninth Circuit wrote,
"The people may not employ the initiative power to single out a disfavored group for
unequal treatment and strip them, without a legitimate justification, of a right as
important as the right to marry."
Now, Im not sure why the judges mention a "disfavored group," as if
singling out a "favored" one for unequal treatment would be okay. As far as I
know, the 14th Amendment, on which the court based its ruling, doesnt offer equal
protection to only those the current fashions deem "disfavored." Thus, I think
this is an example of emotionalism influencing a ruling and its language, sort of as if a
judge sentenced a defendant and, adding an adjective, announced him as "stupid"
Mr. Smith. Calling a group "disfavored" is similarly a subjective judgment. This
is not the only thing the judges were subjective about, however.
Speaking to bias, some may point out here that the Ninth Circuit is the most overturned
court in the nation and that the two judges who ruled against Prop. 8 were appointed by
Democrats. Yet the reality is that theyre hardly alone: virtually everyone
including conservatives misses the 800-pound gorilla with the pink tutu and rainbow
flag in the middle of the marriage debate.
The courts reasoning is that a state cannot deny homosexuals the right to
"marry" if that right has already been established for others. This certainly
seems to accord with the 14th Amendment, which reads, "No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens of the United
nor deny to any person within its jurisdiction the equal protection of the
laws." So, by the judges lights, since Prop. 8 abridges for one group a
privilege afforded everyone else, it is unconstitutional.
But what really is the central issue here? It isnt whether marriage is a right or
a privilege; it isnt whether it is covered under the Constitution. It isnt
even whether or not homosexuals have a right to "marry." The crux of the matter
is this: what is this right or privilege?
If the court rules that there is a right to a certain thing, it must know what that
thing is. Yet if the court accepted that the thing called "marriage" is the
union between a man and woman, there would be no debate. The judges would simply state
that, just like anyone else, homosexuals have a right to marry to form that
time-honored union between themselves and a member of the opposite sex.
Now, some will say the court accepts that there has been a redefinition of marriage. If
so, they had best tell us what it is. Because, you see, our leftist marriage engineers
have not redefined marriage.
They have undefined it.
They have not said that marriage is the union between any two people. If they
did, theyd render themselves just as "exclusionary" and
"discriminatory" as those they decry and relinquish a hammer with which they
bludgeon tradition. They have not offered any alternative parameters for marriage.
Theyve simply implied that the correct definition the one accepted for
millennia in Western civilization is wrong.
Yet if these leftists cannot say what marriage is, how can they be so sure about what
it isnt? If they cannot offer a definition theyre certain is right, how can
they be so confident that the right definition is wrong?
But the point is this: the court obviously doesnt accept the
definition of marriage embraced by most people worldwide today. If it did, it would have
ruled as indicated earlier. Yet there also is no noted alternative definition by which to
go. Thus, it seems that before the judges could rule on the right to this thing called
marriage, theyd have to rule on what this thing is in the first place. So
essentially they have ruled that there is a right to they know not what.
Of course, the judges certainly understand marriage to be some kind of legally
sanctioned union between or among different parties. But his takes in a lot of territory.
If this is all it is and everyone has a right to it, how can we deny it to polygamists
(and their conception of marriage has infinitely more historical precedent than does faux
marriage)? On what basis could we deny "marriage" to Billy and his billy goat or
the Australian man who "married"
his dog in 2010?
This is where some roll their eyes and say that these things will never happen. But
while such scoffing is rhetorically effective, its not very intellectual. Ill
first point out that people in the 1950s would have likewise laughed off the notion that
granting homosexuals the right to "marry" would be a major social and legal
movement 50 years later. More significantly, however, ideas matter. The precedents we set
matter. And when you undefine something, nothing is excluded. No boundaries mean no
This is why the lefts actions do, in fact, threaten marriage. To fail to respect
the institutions time-honored definition and also refuse to offer any alternative
definition is to seek to destroy the edifice without a plan for what will take its place.
It is to imply that marriage can mean anything. And if something can mean anything, it
As for conservatives, they have been suckered again. Without even realizing it, they
have allowed the left to frame the debate as a matter of rights when it is
first and foremost a matter of definitions. To argue it as a matter of rights is to lose
the debate; to control the definitions can render that debate irrelevant.
This is why, mind you, I would not have written Prop. 8 as its framers did: "Only
marriage between a man and a woman is valid or recognized in California." Instead, it
should have been, "Marriage is hereby legally defined as a union between a man and a
woman." The actual text gives the courts wiggle room to find in favor of currently
invalid or unrecognized "marriages"; the suggested text makes it so that there
is nothing else to find in favor of. (Of course, ambitious judges can find a way around
anything, but theyd have to do a bit more creative constitutional trampling.)
Yet controlling the definitions starts with controlling the vocabulary. For a
definition wont take hold in society unless the word it defines first does. This is
why conservatives should never use the term "gay marriage," as this is an
explicit acknowledgement that such an institution exists. Nor should they use
"heterosexual marriage," for what is the other side of that coin?
What is most readily accepted is that which is assumed. From the get-go, conservatives
should have insisted that marriage is marriage, a union between a man and woman and
nothing else. This would have put odd alien fantasies about marriage, whatever they may
be, in perspective. Because you cannot have a right to that which doesnt exist.
Duke is a writer, columnist and public speaker whose work has been published widely online
and in print, on both the local and national levels. He has been featured on the Rush
Limbaugh Show and has been a regular guest on the award-winning Michael Savage Show. His
work has appeared in Pat Buchanan's magazine The American Conservative and he writes
regularly for The New American and Christian Music Perspective. He is a regular
contributor to Ether Zone.
"Published originally at EtherZone.com :
republication allowed with this notice and hyperlink intact."
Selwyn Duke can be reached at: SelwynDuke@optonline.net
the February 13, 2012 issue of
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