At the Risk of Alienation: Walker's Gay Marriage Ruling

The recent ruling out of California regarding Proposition 8- the voter-enacted ban on same sex marriage- re-opens a debate.  At one time I researched the issue heavily in order to find a justification- other than moral or religious- against gay marriage and could not find any reliable one.  For example, arguing against gay marriage on economical grounds fell by the wayside.  For every study out there demonstrating a deleterious effect of gay marriage, there is an equal number out there showing no deleterious or advantages to gay marriage.  For example, one study demonstrated how homosexual monogamy decreased homosexual promiscuity and, one suspects, the spread of disease.  Incidentally, homosexuals do not necessarily have a monopoly on sexual promiscuity within or outside the context of marriage.  When one strips away the alleged economic or sociological objections to gay marriage, at the very worse, the jury is still out and one is left with either moral or religious objections.

By no stretch of the imagination can I be described as a moral relativist.  But, in many discussions with opponents of gay marriage, after presenting my side, they often say, “Can’t they just leave us one thing?”  Unfortunately, that argument carried through to its logical conclusion would be a justification for the segregationist policies that once existed in the former Confederacy.  And in this area, there can be no moral relativism if one adheres to the basic concept enshrined in every major American historical document- “that all men are created equal.”  There can simply be no moral differential treatment of groups of people.  And this idea was given legislative teeth by the 14th Amendment.

In a recent argument by columnist Eugene Robinson, he gets it partially correct, but also makes some errors along the way.  Discussing the 14th Amendment, he correctly mentions its historical context and the Equal Protection Clause.  However, he gets into certain problems, mainly incorrectly stating the Amendment makes the Bill of Rights applicable to the states.  In reality, the 14th Amendment did not seek out to do this, but was achieved through judicial interpretation over time.  Today, not everything mentioned in the Bill of Rights is applicable to the states (for example, grand jury requirements or jury trials in civil cases).  Those rights that are applicable are those found in the context of “ordered liberty.”  And that is defined as those rights so fundamental that they are rooted in our American traditions and history.  It is what allowed, correctly, for the Court to recently conclude that gun ownership is a fundamental right and that the 2nd Amendment applies to the States.  In order to invoke the incorporation of the Bill of Rights to state actions, one needs to look at the nature of the alleged “right.”  Where Robinson and others get it wrong is where they state that the Equal Protection Clause was the justification for 1954’s Brown v. Board of Education decision.

I believe that this decision is a bell-weather test to determine when a Court crosses the line between constitutional jurisprudence and social engineering.  Put another way, when they use the Constitution to establish what is NOT a fundamental right, then things go seriously awry.  Take the two cases mentioned by Robinson.  In the Brown decision, there is clearly no fundamental right to education in the first place.  Compulsory education is a relatively new concept in American history and was certainly not a requirement during or shortly after the founding of this country.  Nor was it even an established right in Europe at the time.  As a result, we can debate the efficacy of integrated education until the cows come home because that decision was, simply, bad constitutional jurisprudence and nothing more than social engineering.  And the fact is that 56 years later, the gap between black and non-black school performance still exists.  That is, there is no fundamental right to education nor is there a fundamental right to health care coverage or other things near and dear to the hearts of liberals.

Conversely, Robinson correctly notes that the Equal Protection Clause was used in Loving v. Virginia which struck down state bans against interracial marriage.  This case is closer to the debate at hand.  As a result of that case- arguably one of social engineering in the minds of some- the deleterious or null effects demonstrated in Brown are not demonstrated here.  Why?  Because in Brown, education is not a fundamental right in the context of ordered liberty, but marriage is a fundamental right.  Marriage, unlike education or health care or social welfare, IS deeply rooted in our history and was the norm and aspiration at our founding and previous to it.  In fact, it is so fundamental that it is enshrined in laws dating back to Moses.

Having determined the fundamental nature of the institution of marriage, it follows that this right must be incorporated under the 14th Amendment and applicable to the states.  And if Loving was correct under this analysis- and history indicates it was- then it follows that application of that fundamental right must be consistent across state lines.  Therefore, Walker’s decision makes absolute sense.  Following through, the belief that States be allowed to decide the parameters or the definition of marriage under the Ninth or Tenth Amendments fall by the wayside.

The bottom line is that marriage is a fundamental right.  I suppose a strict constructionist would correctly point out that our Founders would have never conceived of same sex marriage.  In fact, a better case against it is that there is no fundamental right to engage in homosexual behavior in the first place given the historical prohibitions against it dating to times way before our founding.  But that is a separate argument and one the defense really did not bring up.  Given court rulings on sodomy laws, however, Walker probably would have ruled against those arguments regardless.

A further bottom line is that gay marriage will not bring about the great apocalypse people predict, just as interracial marriage did not shred the moral fabric of America.  Although the numbers are quite open to debate, we are dealing with a very small percentage of the overall American population.  While gay rights groups claim the numbers of homosexuals is around 12%, a more accurate sampling is that about 4% of the population at most is homosexual.  This small segment of the population seeking a fundamental right leads me to conclude that this is clearly much ado about nothing.  The belief and view that homosexual couples cannot succeed in monogamous relationships, cannot provide love and shelter to children they adopt, or cannot be contributing members of society- that is, cannot do anything a heterosexual married couple can do except beget children- is simply based if not on ignorance, then on outright bigotry.  Other than offending the moral sensibilities of 45% of the American population, same-sex marriage is not a symptom of, nor the downfall of America.

In conclusion, lets keep the debate in political perspective.  Gay marriage is not high on the list of concerns of the electorate this year.  When polls further indicate a majority of Americans are either ambiguous or in favor of it, this lends further credence that in political discourse, the Republican Party needs to stay focused on those things that DO worry Americans- the economy, the federal deficit and an expanding government encroaching on the rights of Americans.  Marriage is a fundamental right and we do not need the government encroaching on that right.