Stephanie Grace thinks Judge Martin Feldman is outdated. Outdated?

Only if you believe in the fiction of a living Constitution that can be continuously and routinely amended by judicial decree, can you suggest that Feldman’s decision is outdated.

The argument for same-sex marriage is that to prohibit homosexual marriage is a denial of some right, whether constitutional, civil, fundamental or personal. The basis for the argument is that the 14th Amendment’s guarantee of equal protection now prohibits the states from defining marriage.

However, I call your attention to the recent column by Quin Hillyer in which he explains, as Feldman noted, even the landmark 2013 Supreme Court case that marked the biggest win to date for homosexual marriage, U.S. v. Windsor, specifically paid homage to the importance of state sovereignty. Rather than ruling that homosexual marriage is a constitutional right, the high-court majority wrote that Congress may not interfere with a state’s own determination to recognize such arrangements.

As Justice Anthony Kennedy wrote for the majority, the recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. Citing earlier case law, he explained that the definition of marriage is the foundation of the state’s broader authority to regulate the subject of domestic relations with respect to the protection of offspring, property interests and the enforcement of marital responsibilities. When even the Supreme Court case most conducive to same-sex marriage bases its decision on the states’ authority to define marriage, it takes real gall for advocates of homosexual marriage now to assert that states have no such authority.

For thousands of years, marriage has been the union of one man and one woman. You refer to Judge Richard Posner to suggest discrimination against gay people. Why should there be discrimination against someone who wants to marry two or three or more men and/or women? If they are all consenting adults and committed to all others in the group, why don’t they deserve happiness also? Is this not a civil right, not a constitutional right? Do they not deserve equal protection? Any and all reasons given for gay marriage apply equally to multiple partners. Why should we allow discrimination against polygamists?

The issue is the right of states to define marriage as the union of one man and one woman. The U.S. Supreme Court will decide if the preservation of such a concept of marriage is now unconstitutional.

In order to be fair and just and equitable, should the Supreme Court also eliminate the limitation of one and one? If man and woman are eliminated from the definition of marriage, why not eliminate the one and one? Should not all citizens have the constitutional right to marry two or three or more?

If it is an unconstitutional denial of rights to prohibit two gay citizens to marry, why is it not a similar denial of constitutional rights for three or more to enjoy the same fictional constitutional right? What is the legal justification to deny marriage to the following:

1. Three or more men

2. Three or more women

3. Two or more men and one woman

4. Two or more women and one man

5. Two or more men and two or more women


Richard Regan

retired attorney