I am not opposed to same-sex marriage as policy, but I do not believe that same-sex marriage is required by the Constitution of the United States. I doubt very much whether it is required under any reasonable interpretation of any state constitution. In reply to an anonymous interlocutor (AI) on my Keloland site, I wrote this:
Banning gay marriage does not "discriminate against a group of people by denying them rights enjoyed by other groups." Under such laws, a gay man can marry a woman but not another man. A non-gay man has exactly the same rights. Whatever may be wrong with traditional marriage restrictions, it isn't equality.
Happily, I received a response, presumably from the same A.I.:
So a predominately homosexual society banning heterosexual marriage would comport with your definition of equality?
To which I reply: yes. A law that allowed a person to marry another of his or her own sex but not to marry someone of the opposite sex, so long it was applied the same way to all persons, would satisfy the standard of equality before the law. Treating everyone the same regardless of who they are is what equality means. I don't think that is merely "my definition;" rather, it is the very heart of that concept.
That doesn't mean, of course, that the law proposed above would be a good law or a just law, it just means, as I said, that whatever is wrong with it, it isn't inequality.
AI goes on:
Telling a heterosexual person they can marry a person they are physically compatible with while denying that right to a homosexual person hardly meets a reasonable definition of equality under law.
I am not at all certain what "physical compatibility" means here. I cannot imagine any obvious way that two men are more physically compatible than a man and a woman. Well, actually I can, but I won't elaborate. I suspect that what AI means is that homosexuals are attracted to persons of the same sex, just as heterosexuals are attracted to persons of the opposite sex; so, allowing the one group to marry those they are attracted to, but not the other group is not equality.
But that argument also fails. No one, heterosexual, homosexual, bisexual, transgendered, etc, gets to marry whomever he/she is attracted to. No one is allowed to marry his daughter, sister, or mother, regardless of how "physically compatible" they may be. No two people can marry a third. A State might forbid marriage between first cousins or even second cousins. So long as these restrictions are applied equally to all, regardless of race, creed, color, or sexual preference, they involve no inequalities.
A final argument against different-sex restrictions on marriage makes an analogy with laws against miscegenation. This fails as well, on logical grounds. The purpose and presumed effect of banning inter-racial marriage was to make sure that discrete and insular minorities remain discrete and insular. Or, to use the language of Plessy, the purpose was to prevent "commingling" between the races. Whatever different sex restrictions on marriage may do, they do not inhibit commingling of homosexuals with heterosexuals.
So I see no valid argument that constitutional principles require the legalization of same sex marriage. I also made this argument about motive behind the thirty states that have passed different-sex restrictions on marriage:
I would like to think that the opposition is rooted in irritation at the Courts. California was one of the states where the State Supreme Court tried to enact gay marriage by legislative fiat. The same thing happened in Massachusetts, and would have been overturned their if the state constitution had not allowed the legislature to block the popular will.
AI responds:
As for 30 states banning gay marriage in response to court actions, I doubt it. There was no court action in SD prompting voters to ban same-sex marriage. I doubt Mormon support for 8 in California was anything more than religious bias (bigotry) against homosexuality. I am not accusing you of bigotry. However, I do believe defending the notion that trying to define otherwise arbitrary lines between judicial activism and legitimate legal interpretations justifies a Proposition 8 serves to offer cover for bigots.
Persons of traditional faith have the right hold what opinions they do about the sanctity of marriage. Perhaps it is not the best political strategy to call them bigots. I notice that you mention the Mormons, but not African-Americans who, as I pointed out, may have put Prop. 8 over the top. Selecting your targets in such a way might on its own be at least a soft form of bigotry.
I did not vote for the recent constitutional amendment banning same-sex marriage in SD. But I have close friends who did, some of them deeply involved in that initiative. I can tell you that they were thinking of little else but the actions of various courts around the nation. There has been a movement nationwide to establish same-sex marriage by judicial fiat. I can also tell you that when discussing this with people who are deeply opposed to same sex marriage (and that includes a lot of discussions with a lot of people), I never heard anyone express a contempt for homosexuals. I did hear frequent contempt for liberals who want to trump the legislative process have judges write their own opinions into the text of the various constitutions. So I think you are wrong with regard to the motives behind the movement.
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