Illegalizing same-sex marriage dissembles democracy

November 23, 2009 —

There are some, indeed many, debates that have been brought to their logical conclusion, leaving two camps with differing values to remain forever locked in an argument with two equally valid and opposing ideas. Certainly, who we as citizens trust to have guns will cause us to either approve or reject the idea of students carrying guns on campus; I don’t expect to change anybody’s mind about that. However, as Edward Murrow pointed out during the McCarthy trials, not every issue has two equal and opposite sides. Same-sex marriage is one of these issues.

The political debate around same-sex marriage is exposing some serious threats to American democracy and another to the integrity of American values. First, to use sexual orientation in legislation regarding marriage is unconstitutional because it easily qualifies as suspect classification. The failure of the Supreme Court to recognize this is a failure of the institution. Second, the argument against same-sex marriage is constructed on religious proclamations, which the Constitution clearly denounces as legal motivation for enacting any law. Lastly, a small number of uncompassionate Christians have assumed the authority to proclaim what “American values” are, and I wonder why they feel entitled to do so.

Race is currently the only suspect-classification the Supreme Court recognizes. It is a trait that no law can rule against; rights cannot be limited on account of race. The criteria for a trait to be ruled a suspect-classification are as follows: the trait is immutable or unchangeable; it is connected to a long history of malicious maltreatment; it is overt, obvious, and easily recognizable. The Supreme Court says race meets these criteria, but sexual orientation does not. I don’t think anybody would argue that it isn’t connected with a long history of maltreatment, so we’ll focus on the other two. More and more research shows that sexual orientation is genetically determined, or in other words, immutable. Is sexual orientation obvious? Certainly not, unless we are talking about marriage. Clearly, it is immediately identifiable when two people are applying for a marriage license. Anybody could determine with 100 percent accuracy if somebody is homosexual in that situation. Even race, our only established suspect-classification, is not so easily identifiable (Jason Kid, Michael Jackson, Hutu/Tutsi).

If I had a nickel for every time I heard this: “Gay marriage is against my religion.” That’s all right to say, unless you are proposing that the U.S. government establish a law that enforces your religious beliefs. The First Amendment Establishment Clause says, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Nobody has to actively support same-sex marriage if they don’t want to, but for the U.S. government to outlaw it based on religious values is a simple desecration of the Constitution. If a church won’t recognize the union between homosexuals, it has that right. But the government cannot deny the rights of civil marriage to anybody because Christians frown on it. There are health issues associated with incest and legal complications associated with polygamy, so on those grounds the government may choose to outlaw those practices. It must be those legal or social grounds on which those prohibiting laws are made, not on religious ones. This country is not a place for people who don’t believe in separation of church and state. Saudi Arabia is. The England that the pilgrims left was.

“It goes against American values.” I hear this and I think, “Wow, without this person to tell us what our values are, what would we do?” I’m an American; my values don’t include depriving human beings of rights because I’m uncomfortable with what they do. If they did, I would support a law prohibiting heavy metal music. But they don’t. Rock on, sadists. I would ask people to please refrain from proclaiming what American values are. Popular votes can decide that. Then, so long as they don’t trample the rights of the minority, they can become law. Even in places where ignorance fuels the fires of hatred and bigotry, the rights of the minority are protected, unless the Supreme Court doesn’t do its job. I am thankful to live in a place that takes measures to protect people from the tyranny of the majority…most of the time, anyway.

I am not arguing that samesex marriage is right. Believe what you will about that. But to make same-sex marriage illegal deals a serious blow to democracy. We don’t regulate morality in the U.S., because there is not one definition of morality. We regulate freedom and protection.