Thursday, August 05, 2010

What Does Gay Marriage Mean For You?

As most of you know by now, a Federal Judge in California has ruled in favor of overturning the state's Proposition 8, which prohibited gay marriage, on Equal Protection grounds and social conservatives are quite obviously upset. Legally speaking, I don't think it's an easy case and I've probably blogged in the past about the weaknesses of the Equal Protection argument as applied to gay marriage. But Reason's Jacob Sullum had an excellent post about a month ago in regards to a a federal decision in Massachusetts about federal treatment of gay marriage and I just have to echo his sentiments. The post is titled "How I Learned to Stop Worrying and Embrace the Equal Protection Argument for Gay Marriage" and this bit below just nails it for me.

But you know what? Screw them. I am tired of defending the constitutional principles that social conservatives use to restrict liberty, because they so rarely return the favor by supporting those same principles when the effect is to expand liberty. When a supposedly principled originalist like Antonin Scalia can endorse a ridiculously broad reading of the Commerce Clause because the case happens to involve pot, why should I stick my neck out by arguing that the people who wrote and ratified the Fifth and 14th amendments never imagined they were guaranteeing equal treatment for homosexual couples? Of course they didn't, because the very notion of gay marriage would have been incomprehensible to them. But the 14th amendment says no state may "deny to any person within its jurisdiction the equal protection of the laws," and the Supreme Court has long read the Fifth Amendment's Due Process Clause as imposing a similar restriction on the federal government. Treating all married couples equally, without regard to their sexual preference, seems to me (and Ted Olson!) like a straightforward application of this principle to a new situation, one that the authors of these provisions could not have foreseen, just as they did not foresee television (which is nevertheless protected by the First Amendment) or wiretaps (which are nevertheless governed by the Fourth Amendment).

Is this a constitutional rationalization for my pre-existing policy preferences? Yes, but I think it's a pretty good one. I would much prefer that the government get out of the business of certifying marriage altogether. But as long as more than 1,000 provisions of federal law hinge on marital status, the government will have to decide which couples qualify, and basic fairness demands that sexual preference play no role in that determination. What legitimate government interest can possibly justify preventing the longtime spouse of a veteran from being buried alongside him, simply because both of them are men? This sort of thing really is shameful.

Some people say that down the road we'll look back on this era as no different as race relations in the 50's and 60's, but I wonder if it won't be quite so dramatic. Yes there are a lot of homophobes out there, but I'd wager that most gay marriage opponents are truly concerned with preserving tradition and are just resistant to change. I think the vast majority of us will look back at the debate over gay marriage and wonder what the big deal was.

What's really interesting to think about is what this decision (and the Arizona immigration law decision) mean for the future of the Tea Party movement. It's easy to stay on-point when health care, taxes, and spending are the big issues, but now gay marriage is being pushed to the forefront. I think the tea partiers truly are diverse, ideologically speaking. I'm sure there are those who want to crack down on illegal immigration and activist judges who support gay marriage, but I also imagine there are plenty of those who actually support gay marriage and more open immigration policy, along with those who just plain don't care.

I know what the Rush Limbaugh's and Sean Hannity's of the world are going to say, but I'm more curious to hear what self-appointed Tea Party leader Glenn Beck has to say. I'm on record calling Beck nuts and a conspiracy theorist, but his anti-government rhetoric makes him all the more interesting on a subject like this. It'd go a long way to defining what he really is, politically speaking.


Anonymous Anonymous said...

So true.

I'm not a big fan of the prevailing interpretation of the 14th amendment, but too often self-declared constitutionalists or libertarians are too willing to use this interpretation when it suits their interest.

Remember, much of the rationale behind 'substantive due process' was actually developed during the Lochner era. The notion that "taking from A and giving to B" in the form of economic regulation is unconstitutional comes out of the 'substantive due process' doctrine. The economic cases have since been canned, but the logic continues today.

11:43 PM  

Post a Comment

<< Home