The Constitution Protects Gay Marriage

By: mkfox
Published On: 6/18/2006 2:05:28 AM

The Fourteenth Amendment of the U.S. Constitution defends gay marriage, not because the Constitution defends lifestyles (whether homosexuality is genetic or not) but because it prohibits arbitrary gender discrimination.
Marriage is not solely a religious institution in the United States since couples can be married by judges or other designated civic officials and there are several certain rights, privileges and distinctions married couples possess on the federal, state and local levels. Furthermore, as the Supreme Court wisely observed 135 years ago, "The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect."

The Fourteenth Amendment states: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." This amendment hopefully guarantees that the promise of equality and liberty to minorities long disenfranchised, dejected and relegated will be fulfilled. Marriage is also a "fundamental right" in the United States, as recognized by the Supreme Court in 1967.

Many Americans speak of preserving the sanctity of marriage -- but isn't love the tantamount and paramount sanctification of matrimony? Charles Krauthammer wrote recently, "... who came up with the idea of radically altering the most ancient of all social institutions in the first place? Until the past few years, every civilization known to man has defined marriage as between people of opposite sex." Indeed. Then again, the notion that "all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness" is a pretty new, radical idea, but it caught on with at least one civilization. Our laws may begin with history and tradition, but they don't stop
there.

Civil unions are a poor substitute because it demotes homosexuals to second-class citizenship. Plus, civil unions have no federal recognition. Think of it as 21st century rendition "separate but equal."

Legalized gay marriage will not lead to legalized polygamy. No major American denomination practices or supports polygamy (the Mormon Church outlawed it in 1890). Polygamy is a religious practice open to governmental restriction and, civically, deals with the plurality of marriage rather than a question of arbitrary gender discrimination. The Constitution does not protect "lifestyles."

The various peculiarities of marriage (ages, divorce proceedings, common law marriages) may be under state legislation and guidelines but the Fourteenth Amendment clearly prohibits gender discrimination and, therefore, gay marriage is protected everywhere by the U.S. Constitution.

Comments



Legislature is the place to decide marriage laws. (loboforestal - 6/18/2006 1:29:44 PM)
The various state legislatures, after hearing public debate on the issues, is the place to decide marriage laws.  Any attempt to circumvent this without popular support will result in otherwise unncessary constitutional amendments.  I'd recommend petitioning your state legislators, not judges.


I agree the legislature is the place to decide. (ESB - 6/18/2006 1:48:00 PM)
I think more liberal people are wrong to want the courts to decide if gay marriage is legal or not, and the conservatives are wrong to have politicized referrendums and unnecessary constitutional amendments (both at the state and federal level).

I believe gay marriage should firstly, be left *to the states*, period. And secondly, within those states, it should be the legislative branch that makes the decision.



I have to disagree (Greg Bouchillon - 6/19/2006 12:23:03 PM)
On Whackjob, I've posted a series (unfinished as of now) which explains the merits of judicial activism.

The argument for inter-racial marriage, Brown v. BOE, and others are some popular examples, but no one has really explained why this is true. I hope it makes sense through those posts why judicial activism is important.

It's a falsehood to say that one person can change the law through the courts. It's pretty difficult to do it.



Courts v. states (mkfox - 6/18/2006 2:20:27 PM)
I do think that the only way gay marriage will ever become legalized everywhere is from the states upward because although I think the US Constitution defends gay marriage and there is judicial precedent to support that claim, having the Supreme Court rule in favor of it before most states have would create a huge backlash with the cry against "activist judges" and soforth. I'm usually not a huge fan of letting legislatures decide what should be a right and what shouldn't because why should something be a right in Massachusetts but not Texas? (Yes, I know state constitutions differ, but the question is about objective, rational and logical liberty). Plus, would de jure segregation have ended when it did without Brown v. Board giving it legal legitimacy and a springboard for action?


Clarify (mkfox - 6/18/2006 2:24:09 PM)
... without Brown v. Board giving desegregation legal legitimacy ...


I think desegregation was something completely (ESB - 6/18/2006 2:37:59 PM)
different from what is going on here now. Attitudes against blacks ran much deeper than those against gays now. I believe the legislature is the correct place because, given ten to fifteen years, homophobia will be about as accepted as anti-semitism and racism is now.

The right wingers know that, and thats why they are pushing so strong for Constitutional amendments--they are much harder to get rid of than simple laws.



We already see (Greg Bouchillon - 6/19/2006 12:27:11 PM)
challenges based on the gender 14th argument. I think we will see challenges on the full faith and credit argument eventually also.

I do think that gay marriage is a push. Marriage is a religous institution and civil unions should replace the practice in our government. But gay marriage isn't on the table, only civil unions.

This is going to sound harsh, but if Marshall/Newman passes, I  hope someone takes the first straight person who tries to make decisions for an unmarried partner to court based on Marshall/Newman. It's a gay-bashing bill with possible consequences against straights, and I think they should feel the pain of this bill also. no free passes.

Though, I hope it's not a battered girl friend case.