Thursday, November 27, 2014

Legal Reasoning: Marriage is not a Federal Constitutional Fundamental Right

The post '6th Circuit Echoes Porkopolis' Arguments on Rationale for State of Ohio Defining Marriage' demonstrates how Judge Sutton's 6th circuit opinion echoes an argument made on this blog in 2009.

Judge Sutton also reasoned in the opinion that a state only has to satisfy a minimal rational basis for establishing marriage.  The act of establishing a rational marriage law is in essence an act of discernment and not an act of discrimination.

Euclid used the technique of using contradictions (reductio ad absurdum) when arguing mathematical proofs.

As in a Euclidean mathematical proof, a contradiction is used in the following line of reasoning that has been forwarded to the Ohio Attorney General's office in the event that the 6th circuit ruling is reviewed by the Supreme Court:

Marriage is not a United States Constitutional Fundamental Right 

It is the law of the land, through the Windsor decision, that a state like New York can define marriage within its borders and the federal government must respect that. This was the rationale to strike down the federal Defense of Marriage Act.

What of the corollary to that? Can a state choose NOT to define marriage within its borders?

If a state chooses to do so, will the federal government intercede and say, "You CAN'T be a state without a definition of marriage."?

If one argues that the federal government has the right to tell the state it can't exist without any marriage laws, a reference to the U.S. Constitution where that authority exists must be provided.

Now, if one can't find that clause in the U.S. Constitution, then the conclusion must be that marriage is not a fundamental right and that state can still be part of the union with no marriage laws whatsoever.

And once one establishes that marriage is not a United States constitutional fundamental right, we're back to Windsor and every state has a right to define marriage to address the rational concerns as perceived by that state and the federal government can't intercede in a state's approach to addressing the rational concern.

If the rational concerns were universal rational concerns, they would be in the federal constitution; either in original form or amended.

Update (05/06/205) : Oklahoma House votes to do away with state marriage licenses



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