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.
The question of Equal Protection for the opposing positions seems akin to whether Prop 8 is similar to a law saying, ‘No one may marry a black person.’ Of course, such a law would preclude blacks from marrying, though a sophist could argue otherwise. But the Equal Protection logic works for civil recognition of same-sex marriage the same way it does for civil recognition of marriage between genetic siblings.
I’m gay and I definitely think gay marriages should have an amendment we are people and we do have certain rights that are being taken from. Yes we get to have a civil union but a civil union has nobody knowing that the two are married it’s just a document saying you two share your money. I’m 16 and i think that when i grow up i should have a wedding with my man and people see us in our moment of honor. The power of marriage should be for everyone. I know you two aren’t haters but you and all people should know we LBGT people should have our beautiful wedding so people see the glory of our love. EVERYBODY should have a wedding regardless of race, gender, and occupation. People should marry for commitment based on love. I just wish people would accept us more. Just so you know we don’t choose who we love(unless you want to be critical) and there’s no gaydar we can be anyone (bad or good) Weare not all perfect we are human so we should all have equal rights including marriage. So if you don’t take gays seriously you don’t take humanity seriously.
[...] Various conservatives have been discussing how best to view the inevitable legalization of gay marriage. David Schaengold summarizes: The argument about gay marriage really is about whether we think homosexual sexual unions as a class should be recognized as [a political] good. This is a question we are not competent to decide as a polity. For one thing, gay couples would be offended thatwe are talking about the worth of their relationships. For another, as MacIntyre would say, we don’t have the right set of concepts even to start talking about worthy or unworthy sexual relationships. So, given the thrust of public opinion, either we’ll get private marriage, or gay marriage. The latter seems much preferable, even to a reactionary like me. Gay marriage might lead to the destruction of the institution of marriage, but privatizing marriage would be the destruction of the institution. [...]
I think that the law makers are missing the point that the
Gay community is trying to convey. Beyond the legal aspects of marriage, they want what
everyone else wants. They want to find someone to spend the rest of their lives with, and when
they find that person, they want to celebrate their love by making a lifelong commitment to
each other in the presence of family and friends (and before God). They want their loved ones
to witness their eternal promise to each other; to love, honor and cherish, in sickness and in
health, for richer or poorer, for better or worse, as long as they both shall live. They want us
(America) to know that their love feels the same to them as our love feels to us. It is not “sick”
or perverse or dirty. Between the two of them, it is pure and powerful and beautiful. For two
people who are ready to commit themselves to each other, the love is fresh and new and
strong. They can talk to each other about anything. They make each other laugh. They enhance
each other’s quality of life. They deserve an affirmation of their undying, unconditional love.
***
Beyond the legal aspects of marriage, they want what
everyone else wants. They want to find someone to spend the rest of their lives with, and when they find that person, they want to celebrate their love by making a lifelong commitment to each other in the presence of family and friends (and before God). They want their loved ones
to witness their eternal promise to each other; to love, honor and cherish, in sickness and in health, for richer or poorer, for better or worse, as long as they both shall live. They want us (America) to know that their love feels the same to them as our love feels to us. It is not “sick”
or perverse or dirty. Between the two of them, it is pure and powerful and beautiful. For two people who are ready to commit themselves to each other, the love is fresh and new and strong. They can talk to each other about anything. They make each other laugh. They enhance each other’s quality of life. They deserve an affirmation of their undying, unconditional love.
***
They can have all those non-legal aspects without a law too.
None of those things are illegal right now. The only thing illegal is govt recognition in order to have certain economic benefits or next of kin issues legally settled.
I hope you don’t actually believe a law will result all those things you listed. Law doesn’t change attitudes and opinion and no law in a free country should enforce such acceptance. That would be fascism—not freedom.
Freedom for others means freedom for you.
William,
While your analogies seem very good at first they don’t really portray the exact truth. While right now there is no federal law saying that marriage is only between a man and women if a law is made specifically against a group of people then it becomes discrimation. To go with your analogies if a law were made against ugly people gettting married that would be discrimation. If people who worked all the time and were shy were told they couldn’t get married then that is discrimination. The reason there is cry of discrimation is that the government allows hundreds of benefits to those that are married. For those gay couples that have found their better half they are being denied the same benefits that heterosexuals couples have. In this analogy the ugly lady and workaholic, shy man don’t count because they haven’t found their better half! If they had they would be allowed to marry. By forcing someone to meet a standard (must be only men and women that can marry) or tradition as you call it, that is discrimination plain and simple. The only way societies survive is through change and the tradition of man and women marriages is an old tradition that needs to be changed. If the govt didn’t provide benefits to married couples this wouldn’t even be an issue, but since they have they must look at how to make it a more equal playing field. Marriage or civil unions, regardless they deserve to have what the rest of us all can get.
But Christina, every law entails “discrimination” because it pertains to a specific condition or sphere of action. We ought to discriminate between just and unjust discrimination. No proposed legal definition of marriage is telling people they can’t marry. Even homosexual persons may marry—persons of the opposite sex. You must explain why this is an unjust state of affairs.
In the larger scheme of things, marriage serves a higher social good: the perpetuation of the human community. Since an essential purpose of marriage is to produce families, marriage ought to be subordinate to family in law.
The laws and amendments in question are proposed to identify, protect, and promote the well-being of American families, not to exclude anyone from the institution of marriage.
Since this is the case, homosexual persons ought to subordinate their personal desires for the greater social good.
The family is a natural institution that precedes the state with a value and meaning independent of it. The state merely recognizes and respects the family as a special category of human association. As such, the family has distinct rights and responsibilities pertaining to its function within the larger community. Specifically, the family is the apparatus that produces and nurtures each new generation of members of the community.
A large aspect of the family’s role is the primary right and responsibility it has to provide for the care, nurture, and education of offspring. The state has substantial motivation to support the stability and health of this arrangement.
Any legal conception of marriage that avoids specifying the necessary and sufficient members of the marriage union as one man-one woman will engender types of “marriage” not ordered to the human family, which naturally involves one father-one mother as founding participants. Neither father nor mother will be considered essential to what the family is.
As artifice replaces nature fewer children will be raised by both a father and mother. The result will be severe psychological and social confusion and dysfunction.
Such synthetic conceptions must inevitably misappropriate the dignity proper to the family and distribute it to any grouping that covets it for itself. For example, sperm donors are not fathers and egg donor/ womb renters are not mothers. Yet, groupings will and have emerged where actual parents, surrogate parents, and donors all share rights and responsibilities with respect to children.
Necessitated by such arrangements, the ultimate responsibility for a child’s welfare is removed from the home and assumed by a department of the state to administer and ensure.
Changing the controlling definition of marriage undermines the integrity of the family by introducing the state as a silent partner within every “marriage union” and entrusting it with ultimate parental responsibility over the offspring produced by these unions.
Since the state is an inappropriate candidate for spousal or parental surrogacy, psychological and social dysfunction can only result and increase.
We are confronted with the choice to pursue the kind of society we think best, the kind of society that will produce the happiest, most well-adjusted, children. We can have only one or the other: either we will have a society where children raised by biological parents is the norm or we will have one where the state is the primary marriage partner and agent responsible for parental care.
Christina, if there are some advantages single individuals do not have—and that they ought to have—that married persons now enjoy, perhaps you ought to identify what those are. If you merely want an equal “playing field” for all individuals you ought to focus on obtaining these advantages for all.