Why Prohibiting Same-Sex Marriage Does Not Violate the Equal Protection Clause of the 14th Amendment

The purpose of this post is not to argue the merits or morality of homosexual behavior (that post is forthcoming). Rather, the purpose here will be to demonstrate that there is nothing discriminatory toward homosexuals when defining marriage in accord with (DOMA § 3):

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.1www.gpo.gov/fdsys/pkg/BILLS-104hr3396enr/pdf; emphasis added.

Let me repeat: this post will not speak on the emotionally loaded topic of the wrongness/rightness of homosexual behavior—it will be purely analytic as opposed to moral or normative; I am only arguing that there is nothing discriminatory about defining marriage in such a way as to be the union of one man and one woman. Therefore, any commenting should stay true to the topic.

There is nothing unfair about the DOMA definition: homosexuals have precisely the same rights and the same restrictions as heterosexuals. As we will see below, there is no legal right granted to a heterosexual that does not apply in exactly the same way to every homosexual. There is also no legal restriction for homosexuals that does not also apply in exactly the same way to every heterosexual. Heterosexuals and homosexuals are treated equally. The most common challenge often posed to my contention is the claim that marriage so defined violates the equal protection clause of the 14th amendment. The clause reads,

No state shall … deny to any person within its jurisdiction the equal protection of the laws.2http://www.loc.gov/rr/program/bib/ourdocs/14thamendment.html

The amendment, adopted in 1868, was intended to provide racial minorities the same privileges and protections that every other citizen enjoys. Now same-sex marriage advocates are invoking this clause in their fight for “marriage equality.” This strategically selected phrase is intended to imply that homosexuals do not have the same marriage rights as heterosexuals. However, marriage equality already exists: Any homosexual can marry in any state of the Union and receive every one of the privileges and benefits of state-sanctioned matrimony—he/she just cannot marry someone of the same sex. These are rights and restrictions all citizens share equally. I realize that for many this is an extremely unsettling response; but it is still a legitimate one, nonetheless. Allow me to explain why with a couple of comparative examples. Compare the statement,

Everyone has the right to marry.

with the statement,

Everyone has the right to vote.

Both of these statements are absolute and unrestrictive: they convey to everyone unrestricted liberty to engage in their respective activity. Let us now modify each of them:

Everyone who is not a woman can vote.

What’s wrong here? Clearly, this is discriminatory to women because it restricts them from engaging in an activity that is allowable to men; it modifies who gets to do the activity.

Everyone can marry one person of the opposite sex.

Why is this statement different from the previous one? Because it modifies what everyone gets to do; not who gets to do it. Another example would be the Second Amendment right to bear arms—it gives everyone the right to bear arms, but it restricts what arms everyone can bear. Peter Sprigg of the Family Research Council reinforces the point:

Gay citizens already have the same right to marry as anyone else—subject to the same restrictions. No one may marry a close blood relative, a child, a person who is already married, or a person of the same sex. However much those restrictions may disappoint the incestuous, pedophiles, polygamists, and homosexuals, the issue is not discrimination. It is the nature of marriage itself.3Peter Sprigg, “Questions on Same-Sex Unions Answered: Responding to Andrew Sullivan,” http://www.frc.org

Columnist Jeff Jacoby summed it up this way in The Boston Globe:

The marriage radicals…have not been deprived of the right to marry—only of the right to insist that a single-sex union is a “marriage.” They cloak their demands in the language of civil rights because it sounds so much better than the truth: They don’t want to accept or reject marriage on the same terms that it is available to everyone else. They want it on entirely new terms. They want it to be given a meaning it has never before had, and they prefer that it be done undemocratically—by judicial fiat, for example, or by mayors flouting the law. Whatever else that may be, it isn’t civil rights.4Jeff Jacoby, “Gay Marriage Isn’t Civil Rights,” The Boston Globe, 3/7/04

In sum, marriage as defined above only limits what everyone gets to do; it does not restrict who gets to do it. Therefore, according to the OED, it is not discrimination.

Notes   [ + ]

1. www.gpo.gov/fdsys/pkg/BILLS-104hr3396enr/pdf; emphasis added.
2. http://www.loc.gov/rr/program/bib/ourdocs/14thamendment.html
3. Peter Sprigg, “Questions on Same-Sex Unions Answered: Responding to Andrew Sullivan,” http://www.frc.org
4. Jeff Jacoby, “Gay Marriage Isn’t Civil Rights,” The Boston Globe, 3/7/04
Posted in Law, Politics.

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