A man called Charlie Feather (at least in the comment section on Volokh – Assessing the Sixth Circuit decision upholding the constitutionality of laws banning same-sex marriage by Somin) wrote some very pointed arguments supporting the recent 6th circuit decision on marriage and the defense of the concept of marriage as an institution that can never be marred and transformed to be applicable to two people of the same sex.

When Charlie says “you” in his comments, most of the time that was a reply to a clueless homosexual agenda liberal who calls himself J. Manning.


I believe that you are proceeding from the assumption that same-sex couples are already entitled to marriage, and that they are being denied this. Your conclusions would be correct if that were true. However, that is a false assumption. The only class of persons entitled to a statutory right are those specified by the statutory requirements. Any class of persons excluded by the statutory requirements must demonstrate how they meet those requirements if they desire inclusion.

As to your other assertion that “Every valid law has an rational purpose”, what would be the rational purpose for government support and subsides of non-procreative relationships?

I had already dealt with the question of equal rights protection. No, the exclusion of same sex couples from the right to marry does not violate their equal protection rights because they have no right to violate in the first place. Your question is like asking whether someone who wants to marry his car is having his right to marry his car violated. That would be assuming that such a right already exists. It does not, and neither does the right to marry a same-sex partner exist.

A right must first exist before it can be violated.

You have to show that the right to marry a same-sex partner does, indeed, have constitutional or universal existence. The right to marry an opposite-sex partner has been deemed a “fundamental” right in Loving, but no such right has been expressed for a same-sex partner.

Where it concerns marriage, same sex couples are entitled to equal protection under law only if they already have the right to marry, which they do not in the 6th District and elsewhere. See my comment above.

Re: inter-racial marriage: The statutory requirements were trumped by the fundamental right to marry a person of the opposite sex regardless of race. That is, race is irrelevant to the sexual relationship. However, one cannot say that gender is irrelevant to the sexual relationship.

In Loving, it was the burden of the state of Virginia to show a sound rationale for excluding as a choice of marriage partner a person of a different race, whereas, race is irrelevant to a sexual relationship. Opposite sexes, however, are not irrelevant to a sexual relationship. They are at its very core. So long as the marital relationship is presumptively sexual, gender cannot be treated as irrelevant the way race is and removed from any conception of marriage.

The 14th amendment “creates the presumption that laws must treat people the same” when these people are “similarly situated.” That is not the case where it concerns men and women in a sexual relationship. Their situations are not the same. Women become pregnant and give birth, which requires an entirely different legal treatment.

Where it concerns marriage, a rational basis must be provided for creating the gender-based classification of opposite-sex couples. No other relationship is concerned by this.

Sex discrimination can be subject to heightened scrutiny, but only where sex is irrelevant. That is hardly the case where it concerns marriage and the marital relationship, where that relationship is presumed to be sexual and where procreation is implied as a consequence of that relationship.

Loving, basically, ruled that race is irrelevant to the marital relationship, which is presumed to be sexual and procreative. That is not the case presently where it concerns the two sexes. One cannot conceive of the marital relationship as sexual and procreative in nature while, at the same time, dismissing the two sexes as being unimportant and of no consequence.

Same-sex couples having children by whatever means possible is not at all a consequence of their relationship or the fact that they are having sex. The same standard could be applied just as well to the relationship of a person and his pet or his car. Having children are simply coincidental to these relationships and not a result of them.

One simply cannot treat same-sex relationships the same as opposite-sex relationships. One may just as well believe that pigs can fly, if that were the case.

The strongest arguments of the “other side”, that is, those in favor of allowing same-sex couples to marry, boil down to “Why not? What’s the harm?” and “Because it would be nice!”

The valid, rational, legal, reasoned argument as to why same-sex couples ought not be included in marriage is because there is no valid, rational, legal, reasoned argument as to why they should be included in marriage. The rational purpose in excluding same sex couples from marriage is that there is no rational purpose to including them.

I can’t think of one! Can you?

In order for equal protection to kick in, same-sex couples would have to be equal to opposite-sex couples, which they are not. Insofar as the marital relationship is presumed to a sexual relationship, and insofar as couples are composed of men and women, then men and women would have to be biologically and sexually equal to each other, which they are not. As a simple matter of logic then, same-sex couples can never be equal to opposite-sex couples so long as marriage is presumed to be sexual in nature.

If you want marriage to become a mere civil union where the sexual relationship is irrelevant, then I would agree with you. 

To include one class is not necessarily a ban on other classes. That is to misunderstand how classification works. Nowhere in any of the laws affirming marriage as between a man and a woman are same-sex couples mentioned for banishment, while polygamists, polyamorists and the guy who wants to marry his car are accepted.

The exclusion of other classifications is a natural consequence of the process of classifying.

To include one class of persons naturally has the effect of excluding all other classes of persons. That is how the logic of classification works. Also excluded are polygamists, polyamorists and that guy who wants to marry his car.

I don’t see any law that says “Gays only are banned from marriage”.

A ban is a deliberate exclusion. That is not the case with marriage. Same-sex couples have not been deliberately excluded, that is, banned. They simply do not meet the standards for inclusion, the same as polygamists and that guy who wants to marry his car.

I. Judge Sutton’s neglect of the Sex Discrimination Argument

The Sex Discrimination Argument relies on the wrong-headed notions that there are no significant differences between the sexes; that men and women are equivalent; that biology can be dismissed; that procreation is not presumed in the marital relationship; that the sexual relationship is irrelevant; that men and women do not matter and that marital partners may as well be tennis partners as far as “marriage equality” is concerned. It sees marital partners only with regards to their civil status while ignoring their biological status. This is a radical interpretation of the historical understanding of marriage.

Such a viewpoint uses a technical, closed system of legal logic that ignores culture, history, human civilization and biology. It sees marriage as a domestic partnership cut-off from everything that matters most in marriage as it concerns society, which is procreation. If marriage were about love and living together, and not about procreation, there would be no interest of government to involve itself in such relationships. Judge Jeffrey Sutton is spot-on in his analysis of same-sex marriage.

Marriage does not warrant heightened scrutiny because there is no reason for government to support just “any old relationship”, which is what same-sex relationships are, and because there is no right, fundamental or otherwise, to marry a same-sex partner. Rational basis analysis is the only correct standard by which to judge same-sex marriage cases.

The fact that one sex gives birth and not the other is ample reason to treat the sexes as unequal under the law, unless you believe that marriage has nothing to do with sex and procreation.

Thus, there is a rational purpose to make the distinction between men and women. And insofar as the marital relationship is presumed to be a sexual relationship, and insofar as couples are composed of men and women, then men and women would have to be biologically and sexually equal to each other, which they are not. As a simple matter of logic then, same-sex couples can never be equal to opposite-sex couples so long as marriage is presumed to be sexual in nature. Therefore, there would be no 14th Amendment EP issue here.

Does marriage have anything to do with children? Or is this not merely coincidental to some same-sex relationships? I don’t see any logical connection between same-sex couples and children, as though the latter is a natural consequence of the former, and not merely coincidental to that relationship. There are children being raised by people in all sorts of relationships. There are many pet owners who are raising children, as well. Does simply raising children suddenly create a right to marry?

The government certainly does have an interest in providing a stable homes for children, but this situation does not suddenly create a right for same-sex couples to marry …… or pet owners, either. It is not as though one thinks of children when one thinks of homosexual couples. Far from it. One thinks just the opposite.

There are no children of gay couples. Gay couples cannot produce children, if you haven’t learned that yet. The real situation is, for the most part, a single parent raising her child from a previous heterosexual relationship with a live-in partner helping her out. 

I did read of a case where someone did marry herself. This happened in another country – Taiwan, I think. So, sure! Why not? What would be the harm? We mustn’t discriminate against people who are psychotic and think they are two different people, must we?

Also, people are marrying goats and all sorts of barnyard animals in India and other places in the world. Are they simply ahead of us on the whole right of marriage thing?

Alessandra says:
Beautiful reasoning.