The California Supreme Court made the right decision on gay marriage. California avoided a constitutional crisis that necessarily would have been involved if a Court ruled that a Constitutional Amendment was unconstitutional. Presumably, if an Amendment needs to be made there was likely that the Court would have found the substance of the amendment unconstitutional prior to the amendment. Hence the amendment.
However, I wish to point out an obvious fact about gay marriage and the United State’s Constitution’s Equal Protection Clause. The Equal Protection Clause is a part of the 14th Amendment. Specifically, it declares, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; no shall any State deprive any person of life, liberty, or prosperity without due process of law; nor deny to any persons within its jurisdiction the equal protection of the laws. The bold/italic clause is the equal protection clause.
In light of the 14th Amendment, even an amendment to the State Constitution cannot provide a pretext for denying any citizen “the equal protection of the laws.” What does this mean for the Gay Marriage Amendment? Does the Equal Protection Clause make the gay marriage amendment unconstitutional from the perspective of the US Constitution?
The answer does not require three years of legal training. It only requires common sense. Does a young lady so hideously ugly that not suitor brings forth an offer of marriage feel that she has been denied her constitutional rights? Does a young man so engrossed in his work, or so overwhelmingly shy that he never gets around to popping the question have a claim that he has been discriminated against? The answer is as obvious on the nose on your face. Marriage was open to them as a possibility, although circumstances (either within their control or beyond their control) dictated that they remained single. The law provided no disadvantage.
Is there really any difference for the homosexual? Are they really legally forbidden to marry? Obviously not. They can potentially marry whoever they want, whenever they want, as long as the person is of a different sex, not their sibling, or to near them in the bonds of consanguinity. Homosexuals are most certainly treated equally and can benefit from all the rights of traditional marriage simply by getting married!
The case for gay marriage reminds me of the people who moved to my rural Upstate New York town when I was a kid. Overwhelmingly they moved in from New York City or large suburban centers outside the City. They would move out to the country but would never be satisfied. Always contending for change they often voted together as a block to transform the area, always making more like the miserable places they had left behind. I always wondered, why did you move here in the first place?
Homosexuals have every right to get married, have kids, and live traditional lives. They are Equally Protected by the law. Unhappy about their inability to marry outside the bounds of traditional marriage they demand that the institution be gutted, transformed, destroyed of its transcendent meaning in the name of equality. Arguments for equality almost always work out that way. It leaves me wondering, why do they want to come here anyway?
To the point, the gay marriage argument based on the Equal Protection Clause is specious at best, but the history of 14th Amendment jurisprudence is littered with specious but successful arguments. Rarely does common sense dictate. Pray for John Roberts.