Janet M. LaRue

SIGNORILE: And that’s not what gay marriage is about. Same-sex marriage is about two people wanting to have the same rights that heterosexuals have.

O’REILLY: But what’s wrong with three people having the same rights?

SIGNORILE: I would say it is the same thing as a black person marrying a white person. Interracial marriage was banned in many states.

O’REILLY: All right, that’s it with the point The Boston Globe made today.

SIGNORILE: Yes.

O’REILLY: And I’ll tell you why that’s wrong, but you have to address the fundamental question of you want two people to be married. Correct?

SIGNORILE: Sure.

O’REILLY: Why not three people? Why can’t they get married?

SIGNORILE: Because two people.

O’REILLY: Yes.

SIGNORILE: are how - is how marriage is defined now.

O’REILLY: No marriage (INAUDIBLE).

SIGNORILE: And gays and lesbians are simply asking.

O’REILLY: Marriage defined between a man and a woman.

SIGNORILE: to be included in the existing marriage scheme. It’s not a radical change for marriage. It is still about two people. If there’s a divorce.

O’REILLY: But you’re still excluding other alternative groups.

SIGNORILE: If there is a divorce, there’s still the same issue about custody, one person or the other, property, etcetera. Polygamy is a whole other thing. It involves group of people. It is not within the scheme of marriage.

There you have it. A group of bisexuals getting hitched is “not within the scheme” of Signorile’s definition of marriage.

Signorile, like other homosexuals, tried to equate a ban on “same-sex marriage” with laws that prohibited interracial marriage, which was the subject of the U.S. Supreme Court case, Loving v. Virginia, 388 U.S. 1 (1967). It’s not a valid comparison because interracial marriage doesn’t change the very nature of marriage — one man and one woman.

The Court in Loving held that Virginia’s anti-miscegenation statutes violated the U.S. Constitution. The Court, however, did not hold that there is a civil right to marry the person of one’s choice:

This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment. Id. at 2.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. Id. at 12.

The Court struck down the Virginia statutes because their arbitrary and invidious racial discrimination violated the 14th Amendment to the U.S. Constitution. While the Court did reaffirm that the right to marry is a basic civil right, the Court also reaffirmed that marriage is subject to the state’s police power. The Court did not hold that an individual has a civil or constitutional right to marry the person of his or her choice. We all have the same right — the right to marry a person of the opposite sex.

O’Reilly and Signorile also made the common mistake of concluding that the Supreme Court has never ruled on the issue of “same-sex marriage”:

O’REILLY: But the Supreme Court, if you were right, would have ruled that gay marriage is the law of the land in every state. And they have not because...

SIGNORILE: It hasn’t gotten up to the United States Supreme Court.

O’REILLY: It will never get up there, and they will take it back.

SIGNORILE: And they likely will.

O’REILLY: Because there isn’t any inherent right, the federal government to tell a state who can marry and who can’t. You’ll lose.

The Court did rule on “same-sex marriage” when it dismissed the case of Baker v. Nelson, 409 U.S. 810 (1972) for want of a substantial federal question. While the dismissal isn’t afforded the same status of precedent, it is a ruling on the merits nonetheless.

Baker involved a decision by the Minnesota Supreme Court that the state’s denial of a marriage license to two men did not violate the U.S. Constitution. The applicants had argued that “the statute was unconstitutional because the right to marry was a fundamental right of all persons and that restricting marriage to only couples of the opposite sex was irrational and invidiously discriminatory.” Baker v. Nelson, 191 N.W. 2d 185 (1971).

The Minnesota court distinguished the Virginia statutes at issue in Loving from Minnesota’s statute. “But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.” Id. at 187. "[T]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” Id.

Simply put, the Supreme’s dismissal of the Baker appeal means that there is no right to marry a person of the same sex under “the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution.” Until the Supreme Court reverses itself, the Baker ruling stands.

Opening the marriage altar to same-sex couples isn’t just a slippery-slope to legalizing polygamy — it’s a luge. And “opposition” to polygamy by activists like Signorile is artificial ice chilled by Olympian hypocrisy.

Since Congress has failed to protect marriage by sending a federal marriage amendment to the states for ratification, state constitutional amendments remain the next best defense against a crash at the bottom.


Janet M. LaRue

Jan LaRue is Senior Legal Analyst with the American Civil Rights Union; former Chief Counsel at Concerned for Women; Legal Studies Director at Family Research Council; and Senior Counsel for the National Law Center for Children and Families. Be the first to read Janet LaRue's column. Sign up today and receive Townhall.com delivered each morning to your inbox.