The Supreme Court rightly put a temporary hold on the U.S. 4th Circuit Court of Appeals' 2-1 decision to reject the freedom of Virginians to affirm the uniqueness of the marital relationship in their laws.
But the untold story from the appeals court ruling is its linguistic gymnastics — that there is both a fundamental right to same-sex marriage and nothing unique enough about an opposite-sex marriage.
Responding to his colleagues, dissenting 4th Circuit Judge Paul V. Niemeyer wrote, “To now define the previously recognized fundamental right to ‘marriage’ as a concept that includes the new notion of ‘same-sex marriage’ amounts to a dictionary jurisprudence, which defines terms as convenient to attain an end.”
Disregarding both the Constitution, as well as the will of the people, the court assumed that marriage can be whatever anyone wants it to be, and that anyone or anything can have a right to it.
But, as the Supreme Court has made clear, any fundamental right must be deeply rooted in our nation’s history and tradition to be recognized as such.
And everyone knows that our country (much less others) possesses no history of marriage between members of the same sex.
Even Supreme Court Justice Anthony Kennedy recognized this in last year’s Windsor decision, stating that, “until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.”
After skipping this required constitutional analysis, two judges of the 4th Circuit then assumed that a genderless relationship is the same as marriage.
But opposite-sex and same-sex relationships are inherently different. Although many relationships share similarities — companionship, close emotional bonds, commitment, security, financial support, etc. — aspects of the marital relationship make it unlike any other.
Every person in the world has both a mother and a father. And this is our common story, no matter who or where we are.
This is why throughout history — regardless of culture or belief in God — marriage between a man and a woman has been unique.
Marriage produces children and provides those children with the mother and father responsible for their existence.
This is and always has been the government’s primary and entirely rational interest in marriage. The government doesn’t regulate close friendships, for example.
And because laws can’t account for every exception (for instance, a really wise 12-year-old still can’t vote), we don’t redefine marriage laws for the minority of marriages that don’t have children.
This kinship between a child and his or her mother and father matters. Regardless of whether we grew up with both biological parents, adoptive parents, grandparents, or step-parents, nearly all of us have wanted to know who our mother and father are.
Innate in every human being is a desire to know who we are and from where we have come. We all yearn to know our story and where we fit into that story.
As Judge Niemeyer noted, “Every person’s identity includes the person’s particular biological relationships, which create unique and meaningful bonds of kinship that are extraordinarily strong and enduring and that have been afforded a privileged place in political order throughout human history.”
This cuts to the heart of why marriage is a fundamental right — not because other relationships aren’t important, but because the union of a man and woman holds a unique and essential role for society.
Marriage gives birth to the next generation. Connected to their mom and dad, grandfathers and grandmothers, aunts and uncles — this is where our children learn their story and pass it on to their children.
Millions still flock to Ellis Island to see where their ancestors first set foot on American soil. And people still sue hospitals when babies are accidentally switched at birth.
These moorings of kinship and bloodlines matter — to everyone. And that is why preserving marriage as the unique relationship between a man and woman is so important.Ryan Bradel is an attorney practicing in Washington, D.C., and Virginia with experience in family and constitutional law.