Marriage Equality: SCOTUS’ Pandora’s Box

whole-is-greaterLet me see if I can keep this straight: The whole marriage thing about gays is based on equality. It derives from the 14th Amendment’s section: “nor deny to any person within its jurisdiction the equal protection of the laws.” As with almost every absurd attempt to redefine constitutional protections, this one revolves around the definition of ‘equal’, and that requires out of context meaning, or a complete rewrite of the amendment.

Proponents of gay marriage want the Supreme Court (and anyone they can tell for that matter) to ignore the wording of that 14th amendment clause, and instead of reading it as it is “of the laws” they want it read to mean ‘of the law’.

If they have their way with changing the plain wording and meaning of this amendment: marriage is not the only thing that will be upended.

‘Of the law’ means any specific law.

A simple reading of the question of gay marriage based on a specific law: If a law provides that a state shall license to two people, legal permission to get married and it assumes those two people are male and female, (because until the gay rights era there was no question of what marriage meant,) then ‘of that specific law’ would mean the state shall license to two people. Period. Without the definition of the qualifications of a law the qualifications are not specified and therefore open to anyone. And on the surface such a dictate would be prudent because if the legislature did not specify restrictions, there are none. The solution being, the legislature amends the ‘law’ and adds the restrictions.

But if we are reading constitutional amendments by the way some people want them read and NOT how they are written, we wind up where not even the added intent of the legislature makes a difference. Adding that restriction itself becomes a violation of equal protection, because before the restrictions there were none. See where this is going?

The law did not dictate gender requirements. So it is ruled that gender is not a requirement. Once the law is amended to include gender requirements, it is ruled that it cannot be restricted as to do so would violate there is no gender requirement. That is circular logic and fatal to any argument. It also flat out eliminates the separations of powers since a legislature’s intent is not even permitted to be weighed.

The whole premise in this debate is whether the parties to a civil license, granted by the state or local municipality, are able to be regulated by the state or local municipality: or whether the rights guaranteed by the 10th amendment; “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” are not relevant if a federal law or court has ruled that such regulation violates the 14th Amendment’s equal protection.

That depends if the amendment says ‘law’ or ‘laws’.

It says ‘laws’.

‘Of the laws’ means the clause guarantees that no law be written that contradicts any other law as to do so would not be equal protection OF THE LAWS. In the first perspective, it has nothing whatsoever to do with ‘a law’. It requires multiple laws to be applicable. Or in the opposing perspective, it may require a single law, if more than one party is being affected by it, but all parties must be otherwise equal to apply it. All equal parties must be given equal protection OF THE LAWS. That does not in anybody’s sandbox playground wind up meaning that a specific law cannot restrict use of it from any person it does not apply to, as if a law does not apply to a person, that person is not equal to a person it DOES apply to.

If a legislature should pass a law that says that it applies to the persons it addresses and that those persons, in order to form a legal union must be of opposing biological genders, there is no court in the land that could claim (without making it up) that such a class of people were in any way equal to any other class of people. That class of people defined the restrictions of that law. That specific law could simply not have an opposing version that prohibited marriage from the class of persons who were the same biological gender. THAT would violate equal protection OF THE LAWS. But I am not aware of any state that has law that makes it illegal to marry persons of the same gender other than rightly overturned constitutional amendment and prohibitions. I do believe every state has a law that requires a license to be married, unless it is common law. (Why people are not entering into common law same gender marriages is beyond me. It doesn’t have licensure requirements or restrictions, which is why it is called Common Law.)

The problem with marriage laws is that the license requires 2 persons. The state of each person is a time honored, cast in millennium, given of both logic and tradition as well as sanctioned by religious entities that perform the ceremony to cause the action upon which the laws become active. The question of marriage is not the individual, it is the relationship of two individuals.

That relationship has taken thousands of years to reach that which the western world has come to recognize as marriage. Marriage is not, nor has it ever been about equality. It is about the entity created by two people that exceeds the sum of its parts. Marriage is NOT about two people sharing responsibilities. Marriage is NOT about one partner and another partner. Marriage is about the resulting union made up of two balanced parts.

The gay community has been desperately wanting to define marriage as two people in an equal relationship. If that were the definition of marriage, that relationship could be based on “flexible divisions of labor, companionship, and mutual sexual attraction.” [1] That doesn’t make up a marriage it makes up a labor pool. It also makes up a business transaction where money may not exchange for sexual favors but something does.

The rate of marriage failures are mostly based on that ill-definition of the union of marriage. Was it wrong to treat women differently in marriage than men? Of course it was, but that wasn’t because of marriage. Women were treated differently in nearly every aspect of life. Today Muslims still treat women as property. Marriage itself has never been about its parts.

For a license to be issued by a state or local municipality that guaranteed equal protection of the laws would be impossible. It would have to be more than one law, or it would have to require parties that met the criteria of the law being treated differently under the law. Any party that meets the criteria of the law must be treated the same by it.

Laws that do not define those who qualify to be governed by them are vague and should be thrown out and overturned as null, NOT rewritten by a court to define them in a way they are not already defined. Courts should have disqualified marriage laws that did not define the participants. Likewise, courts should not ever pretend to be legislatures and dictate definitions not already contained in the intent of the legislature.

As with most issues of a grand nature, the opposition reacts to the objection. It does not pro act to the result desired. That, in this instance, means people seek to ban gay marriage. Wrong move. People seek to define marriage through constitutional amendments. All it takes is to rewrite the marriage laws to define marriage to qualified individuals for state and municipal licenses. Sure, it will be taken to court. But the argument there is that the law only applies to qualified individuals. There is no law prohibiting marriage for anyone. There is only a law permitting marriage to persons of opposing gender. One from each.

Then the Supreme Court will eventually be faced with being forced to read the 14th Amendment for what it says. Not for what gay activists want it to say.

In the meantime, should SCOTUS rule that there is a right to gay marriage, or that marriage laws include people not defined as being included then they will have to also include non-gay persons or the laws will only apply to gays. The tables will have been turned and heterosexual persons seeking to enter into a license to marry will not be permitted to do so as they are not specifically granted that right.


[1] = http://www.livescience.com/37777-history-of-marriage.html