WASHINGTON, September, 5 2014 —Federal District Judge Vaughn Walker angered Californian voters in May 2010 by striking down “Proposition 8,” the State Constitutional Amendment that defined marriage as the union of one man and one woman. Today, judges across the United States have invalidated 19 bans against gay marriage while the country awaits a Supreme Court ruling deciding the issue once and for all.
There are legal challenges that resist the growing acceptance of same-sex marriage and the judicial thinking that concludes gay marriage is protected under the U.S. Constitution. The recent federal court ruling that upheld Louisiana’s same-sex marriage ban is the most meaningful example so far. Although parts of the decision will probably be overturned by the Supreme Court, if the Justices agree the Fourteenth Amendment does force States to provide gay couples with the same legal benefits as straight couples, there is another legal argument to be made against the Constitutional protections being afforded to same-sex marriage.
Whether or not Americans accept homosexual behavior as proper does not give voters and lawmakers the right to encroach upon the personal freedoms of individuals, even through a constitutional amendment. It is the responsibility of the courts to decide whether state and federal constitutional bans on gay marriage violate the constitutional rights of gay couples.
Growing consensus around that conclusion may be correct. Such bans may violate the Equal Protection clause of the Fourteenth Amendment. Constitutional amendments should be used to expand the freedoms of individuals, never to undermine them.
On the other hand, decisions upholding the right of gay marriage have failed to protect the First Amendment rights of those who view marriage as a religious institution between a man and woman. To balance the rights of both sides, the only recourse is to correct a long-standing overreach of government. That is, government has no right to dictate the terms of marriage.
Government can recognize civil unions and endow them with benefits like tax breaks, but marriage as a religious institution cannot be undermined by the courts or legislators. In other words, the only solution to this contentious debate is for government to start issuing civil unions while leaving marriage as a rite or sacrament of churches.
Should the Supreme Court eventually decide there is a fundamental right to marriage for homosexual couples, there is a lot of baggage that the courts, as well as our legislators, would have to address. Unlike the civil liberties violations faced by minorities and women, discrimination against homosexuality revolves around a group which is defined by its behavior, not externally visible characteristics. Blacks and women face discrimination regardless of what they do; homosexuals face discrimination precisely for what they do, or if they self-identify.
Gays should not be targeted for discrimination, have their rights limited, or be attacked. There is no valid legal argument to limit legal protection on the basis of homosexual behavior. But American law has always encouraged and discouraged some behaviors for the perceived benefit of society.
When it comes to banning personal behaviors like drug abuse, the benefit is clear; the legality of banning prostitution hinges on the harm it causes those drawn into the business. All societies have moral, not necessarily religious, mores that the U.S. legal system is historically bound to respect, so the legal issue of gay marriage is far more complicated than simple ban or legalization of gay marriage.
Prohibitions against bigamy and prostitution serve as prime examples of moral preferences that U.S. law does respect. Taking into account all sorts of depraved sexual behavior, the courts could do significant damage to American society should their rationale for lifting gay marriage hold up in the Supreme Court. It would significantly diminish what harmful behaviors government is allowed to suppress.
The misogynistic oppression created by Islamic hardliners and their demands for Sharia law make clear the hazards of using the legal system to enforce religious preferences. The government ends up neglecting the interests of some citizens, thus creating civil unrest, or legitimizing the use of police powers to disenfranchise others.
Marriage rights are too important, too fundamental to personal religious belief, to be left to America’s politicians and courts.
The practical reason for letting the courts decide the extent of marriage rights is that the legalization of gay marriage is a means of normalizing gay marriage. Government efforts to ban gay marriage are a way to oppress the gay minority.
In reality, both sides are abusing America’s political and legal systems to settle a social issue that these institutions have no business deciding. The Courts cannot force gay marriage onto the American people, nor can they grant homosexual couples the same status that heterosexuals enjoy when they start families. At the same time, legislators cannot use the law to target homosexual relationships in an effort to undermine homosexual behavior while respecting the U.S. Constitution, specifically the Fourteenth Amendment. To do that undermines our most crucial constitutional rights.