Constitutional Equal Protection provides no shelter for gay “marriage”

Two weeks ago, North Carolinians overwhelmingly demonstrated that voters still innately understand that marriage is a license to be held exclusively by one man and one woman.  The next week, the President ceased his wink-and-a-nod “evolution” campaign and came out in support of homosexuals being able to take part in the institution of marriage.

There is certainly the question of morality involved when discussing marriage which remains central to this conversation.  That is not to in any way to place heterosexual people on a pedestal as few would argue against the idea that hetero’s have done more to undermine the marital institution through our own divorce rates than anyone else.  But in light of the administration’s decision to ignore DOMA, a properly passed law, signed by his branch and his party into law; and in considering of the anti-democratic forces appealing Proposition 8 in California, the equal protection argument deserves elaboration.

Section 1 of the Fourteenth Amendment clearly states,

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.”

The Fourteenth Amendment is without doubt the most important post-Bill of Rights Amendment to the Constitution.  It provides an umbrella of protection for black Americans under Jim Crow laws, unborn children in the womb and property protection for American citizens.  It incorporates the Bill of rights to many of the states.  But none of this should be construed to necessarily mean that it is a “one size fits all” fix to every inherent discrepancy in demographic.

Equal protection for who?

As we’ve discussed before, if homosexuality is an inherent quality that should be celebrated and is immutable, if American citizens are born, predisposed to loving someone of another sexual orientation — a strong case can be made that these people deserve the right to marry “the person that they love.”

But as the case currently stands, marriage has never been an institution that protects the right to marry the “one you love” as many revisionists now argue.  It has always been between a man and a woman.  It has been a protection for men and women to join in union.  As long as homosexuality is shown to be a combination of personality, environment and overwhelmingly — circumstances and interaction with others, it will remain something that is not to be celebrated or provided legal protection.  That is not to say that homosexuals cannot become the best citizens amongst us.

To go farther, this is not to say that whatever “church” desires to marry two people cannot put on a ceremony with the exchanging of rings in front of their peers and provide the participants with a certificate.  But that doesn’t mean the state owes these Americans additional rights beyond what the Constitution already provides them.

Loving v. Virginia

The quickest argument that is often heard in opposition to a pro-marriage viewpoint is a comparison to Loving v. Virginia, where the Supreme Court labeled a Virginia statute unconstitutional because it forbade the marriage of interracial couples.  The decision was obviously correct.  The prevention of interracial marriages was based off of a racist and mistaken view of inferiority between the races.  It’s purpose was simply racial “purity.”  The historical perspective the nation had was one of racism, slavery and war.  It was only during our parents lifetime that black children were forced to attend different schools, hotels and restaurants.  The racism was so blatant that separate bathrooms and water fountains were constructed for blacks.  The white facilities were always superior.  Black Americans were forced to walk to the back of the bus.  Many southerners treated black Americans as animals.

Fortunately, there is no similar discrimination in our society today.  To be sure, racism and bigotry still exist, but no one (save the unborn) are being denied basic human rights.  To hear a “gay-marriage advocate” speak, one would suppose that this truly is a civil rights issue.  One would believe that gays are denied the rights the rest of Americans enjoy.  Fortunately, that is not true.

Americans now enjoy the same amenities and privileges whether hetero or homo.  We eat at the same locations, we interact at the same stores, buses, hotels, etc.  Even better, should anyone ever treat homosexuals with inferiority, the culture of America is one that denounces such behavior.

When one hears people discuss “gay rights”, what they are really asking for is the additional statutory privileges given to married couples.  They are requesting hospital visitation rights, testamentary conveniences, workers compensation and the protection of pre-nuptial agreement benefits, etc.  All of which, can be expressly requested by a partner already.  They are simply seeking that marital presumption in favor of those “rights.”

Some say that in states like Virginia, where the marriage amendment states, “this Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage”; we are effectively preventing a man who loves another man to visit his partner in the hospital, or for the hospitalized man to leave his estate to his partner.  Yet, through express provisions, none of these can be prevented under Virginia’s laws.   It is inconceivable for a hospital to deny access to a visitor because they are gay.

Some detractors have construed the Virginia Amendment to state that even private contracts approximating marriage cannot be enforced.  Yet, no legal decisions have rendered this opinion.  The purpose of this amendment and ones like it is to retain marital rights as they are, not to exclude extemporaneous relationships and thus far, that is the only manner in which it has been construed.

Why should government distinguish between the two?

Marriage is and always has been between a man and a woman.  Government encourages marriage as it is likely to yield home purchase, children and overall lawfulness.  Children raised with two parents are statistically more likely to stay out of trouble and to obtain financial success.  Government encourages child rearing as it benefits the state to have a steady birth rate.  Government encourages two parent homes as it is likelier to yield more educated and law abiding children.  Likewise, “bi-gender” homes provide the balance that a homosexual household is literally unable to provide.  That is not to say homosexual couples “aren’t as good of parents as heterosexuals” it merely highlights obvious differences.

Privileges are reserved for specific groups, if anyone could partake in a privilege, then it would cease to be a privilege.  Again, that is not to say that a “church” could not marry same sex couples.  It is simply to say that tax payers owe no additional responsibility to the relationship.

We don’t give farm subsidies to non-farmers.  Universities don’t give white people minority scholarships.  Equal protection doesn’t mean that every person is inherently the same.

If the government was forced to treat every citizen alike then it would be illegal for special needs children to receive additional attention in the public school system.

Marriage is a license and as it would not make sense to provide driver’s licenses to blind drivers, it does not make sense to grant marriage licenses to couple’s that may be of multiple numbers, different ages or same genders.

Slippery slope

As same sex marriage gains traction throughout the U.S., more alternative lifestyles will seek acceptance.  If two loving adults can consent to be married, why not three?  If they are of age and have the mental capacity to consent, who are we to deny them rights?  The three of them are in love and two alone wouldn’t fulfill them.  They were born this way.  You can’t discriminate against bigamous relationships.  Morality has no place in the law.

This is where the homosexual marriage line of logic leads.

Why shouldn’t the age of consent be lowered?  Sixteen year olds can drive but they can’t make the decision to marry older men in some states?  That is discrimination.  Some fourteen year olds are more mature than others, if they are in love they should be allowed to marry.  Even in the Bible and throughout cultures, very young children, eleven or twelve years old were allowed to be married.  Dr. Smith’s psychological research says . . . The AMA has revised its definitions of mental disorders .  . .


Eventually, a line is going to have to be drawn somewhere.  Many may think pederasty will never be a concern, but once all consenting relationships are accepted under the law, the fringes will come forward with their hands open wide under the Equal Protection clause.

This site will argue that marriage is for two consenting adults and yet they will argue that it is discrimination.  There has to be people willing to see the difference between discrimination and differences.  We don’t put our girls and boys in different little leagues because we are discriminatory.  There are legitimate differences that cannot be ignored.

There is something biologically complimentary between one man and one woman that I am not going to detail today.  There is something emotionally complimentary (and at the same time explosive, I’m kidding — but seriously) about a one man, one woman relationship.  When viewed in light of their children, each provides qualities important for human emotional formation.  We can create legal rules about equality, but at the end of the day, a first grader can articulate the differences between the relationships.

Equal Protection

Until, someone can articulate how the Equal Protection clause prevents states from labeling different relationships as different, the argument for equal protection of the laws as applied to every conceivable relationship between consenting adults is going to have holes.  Equal doesn’t mean that we are all the same.

If however, there are legitimate rights being denied to gay partners — we should be willing to have that conversation.  That is not to express support for civil unions, but it is however an expression of concern for a legitimate rejection of the protections heterosexual Americans enjoy.

At the end of the day, the sole right that conservatives argue should be denied to homosexual couples is the adoption of children by homosexual couples.  Which, will have to be a BIC conversation for another day.


As a side note, I have gotten some comments questioning the Biblical authority for one man/one woman marriage.  I would simply point to Jesus’ definition of what marriage is in Matthew 19; Paul’s definition of an unnatural relationship in Romans 1 and obviously, Moses’ recital of God’s law in Leviticus.