Posted by
Josh Kon on Monday, April 13, 2009 11:25:27 PM
Let's assume our republic is dead. Let's imagine that the oligarchical courts reign supreme. Finally, let's act as if those courts must at the least pay lip service to a document -- the Constitution -- from which in actuality they rarely seek guidance. How would such a group of philosopher kings operate when defining legal marriage? By what criteria would such governing judges decide whether the government should encourage certain relationship choices? Put differently, how would these wise judges figure out what type of relationships deserve the government's endorsement of "legal marriage" through things like tax breaks.
If these judges wish to maintain a bit of constitutional integrity, it appears the ambiguous words of the 14th Amendment are the best empty vessels in which they can pour their personal notions of which relationships the government should encourage. In particular: "no state shall ... deny to any person within its jurisdiction the equal protection of the laws."
Indeed, it has been argued by many that those engaging in same-sex relationships must be afforded "protection" that is "equal" to any other "person" within the court's "jurisdiction." Thus, because a homosexual is undeniably a person within the same jurisdiction as many heterosexual people, their relationships must be given the same legal endorsement as that of heterosexuals. Putting aside whether legal encouragement of a relationship can be fairly called "protection" under the law, the above exegesis does not seem unreasonable.
Upon a bit of further reflection, however, one must conclude that if read like this, the Equal Protection Clause is meaningless -- or worse, too meaningful. To be sure, when read in such a sweeping manner, the Equal Protection Clause would leave "unconstitutional" most if not all laws in its invalidating path. To illustrate this truth, let's first take an example within the same realm of political and cultural thought.
Under such an understanding of Equal Protection, no law encouraging any form of marriage would remain. Is a single individual not a "person" within the same "jurisdiction" as couples, yet still not deserving "protection" that is "equal" to that of those couples? Who are we to make distinctions based on the conduct of this class of the citizenry? Just like democratic channels are too stupid to figure out that heterosexual behavior is not more deserving of government sanction than homosexual behavior, so, too, the democratic public is too stupid to be trusted with determining that monogamous and committed sexual behavior is more deserving of government sanction than is the sexual behavior in which single people frequently engage.
Some may attempt to skirt by this screaming inconsistency by just discarding legal marriage altogether, arguing that we should indeed get rid of all government sanction of one's relationship and sexual choices. If that is the case, then what of the differences drawn between those engaging in heavy herion abuse and those that do not. How can the government choose to put only one in jail? Does that drug addict not, as a person and consenting adult, deserve equal protection under law regardless of the behavior in which he engages?
And even if you wish to legalize all drugs -- what about one who take another's property? Why can we imprison the robber and take away his equal protection just because he conducts himself in a different way? Who are we to judge which behavior deserves government encouragement or admonishment and which does not?
In the final analysis, being honest one must conclude that equal protection does not mean treating every behavior in the same way. Such an understanding would invalidate almost every law, as every law makes distinctions based on conduct. Rather, affording equal protection merely means that we must treat people the same to the extent they engage in the same behavior. Marrying a women is not the same as marrying a man; men and women are not the same; and a father or mother is not obsolete.
Before I go, let me add just one more thing: It may seem as though my often-repeated issue with same-sex marriage stems from some personal animus towards gays. I have none. While I value the unique and irreplaceable synergy men-women relationships offer society and children, what is most angering is the same-sex-special-interest group's repugnant tactics, whereby they use the courts to usurp the democratic channels that do not give them what they want. At the present time these tactics may just force upon us same-sex marriage, before it gave us Dred Scott and the view that black people are property, and what it may reap in the future is too scary to even think about. My position is simply that a supreme governing class like the courts, one which is not responsive to the people through elections, must not be tolerated in a country founded upon notions of self-governance. Why is that so controversial?