It is said that justice is equality, and so it is, but not for all persons, only those who are equal.
--Aristotle
In overturning the California voters' ban on gay marriage, the state's high court argued that homosexuals are a special class, somewhat similar to blacks and women, and deserve special judicial scrutiny for the protection of their rights. At the same time the court insisted that gay marriage must be allowed because gays deserve, no less than anyone else, the equal protection of the laws.
This argument is dubious on two counts. First, blackness and femininity are outwardly identifiable characteristics. Homosexuality generally is not. True, some homosexuals adopt exhibitionistic ways of walking and talking which perhaps serve as a kind of signal to others similarly inclined. But gays can "pass" for straight in a way that blacks can't typically pass for white or women for men. Moreover, blacks were slaves and suffered historical oppression in a way that neither women or gays can match. So the idea that these groups are the "new blacks" is an insult to blacks. Finally whether there is an innate disposition to homosexuality or not, it's hard to deny that homosexuality constitutes a choice and a lifestyle. Whatever the orientation, one still has to choose to act on it. By contrast, blacks and women don't have any choice because race and gender are not a lifestyle.
Now let's turn to the issue of equal protection. Clearly this means that people who are similarly situated should be treated in the same way. So men and women, blacks and whites, straight people and gays, all have the right to vote, the right to speak their mind, and the right to marry. But gays already have the right to marry, just like the others. They have the right to marry adult members of the opposite sex. What they want, however, is the right to marry members of the same sex. This, however, is not a right enjoyed by anyone else. In other words, gays are not asking to be treated the same as everyone else. They want special rights that no one else claims or enjoys. They want to rewrite the definition of marriage.
Put the matter another way. States, acting through their representatives and reflecting the values of the voters, have the constitutional authority to define what marriage is. Traditionally marriage requires: a) two persons b) both of them adults of legal age c) unrelated to each other and d) one male and the other female. Now here are some interesting possibilities. A 10 year old demands the right to marry, charging that the age requirement discriminates against him. Or a fellow wants to marry his sister, contending that the incest prohibition violates the equal protection clause of the Fourteenth Amendment. Or a Muslim seeks four wives, asking why polygamy among multiple "consenting adults" should not be allowed the same legal status as the traditional two-person arrangement. In more imaginative scenarios, a fellow might want to know why the marriage definition is so species-specific. This guy wants to marry his dog on the grounds that "I love my dog and my dog loves me." Why don't all these people have valid equal protection claims under the constitution?
The point here isn't that gay marriage is indistinguishable from polygamy or child-marriage. Rather, it is that gay activists want to dislodge one of the definitions of marriage but retain all the others. They want to move one of the goal posts but not the rest. But how can one part of the marriage definition be discriminatory under the laws while the other parts are not? If the male-female requirement violates the equal protection clause, so must the other requirements which also exclude classes of people. If gays are a special category, why aren't Muslims and Mormons also a special category? It seems that gay activists want a form of "equal protection" for themselves but not for other groups.
Neither equal protection nor antidiscrimination is a real issue here. Judicial tyranny is the issue. Isn't it interesting how even the most naked imposition of power must make the pretense of having justice on its side?
Reader Comments ( Page 3 of 34)
31. DD speaks the obvious truth and all of you haters out there have failed to credibly attack any of his points.
Any new definition of marriage is arbitrary - there's the indisputable traditional definition and then there's everything else. If marriage doesn't have to be between a man and a woman, then there's no reason credible reason that it has to be between just 2 people.
My argument is not with gay marriage but with the willingness of appointed judges to impose their own personal beliefs on the rest of us. We all have a right, whether at the state or federal level, to decide what we define marriage to be and, in California, the people had spoken. Judicial activism should alarm all of us on both sides of the political isle - left wing activism today can turn into right wing activism tomorrow.
Dubster out
dubster at 5:46PM on May 19th 2008
32. Mr. Robert, would you say the 'artist was mightier than the sin'?
JefFlyingV at 5:46PM on May 19th 2008
33. Dear Dinesh,
Unfortunately, I must point out that your argument "that gays are not the same as other groups because they could 'pass' for straight if they wanted to." is flawed.
Using your argument, Jews and Muslims should not enjoy any protection against discrimination because they could 'pass' for Christian if they wanted to.
Child marriage wouldn't be the same thing as allowing gay adults to marry either because our society judges children to be incapable of making many decisions (owning a gun, voting, joining the military, etc.) in as responsible a manner and, by virtue of their youthfulness, to be incapable of giving informed consent.
Likewise, an animal is even less capable of giving informed consent as--by virtue of being an animal--it is not self-aware.
Marrying someone closely related to you is more than just morally abhorrent; there are health issues like hemophilia to consider.
In fact, the only argument you make that even closely resembles the idea of equality without anarchy is that of Muslims, Mormons and polygamy. To this, I can only say that A) we ARE a Christian-based society. With the separation of Church and State combined with a definition of 'Christian' that is loose enough to accommodate most persons. Certainly, if you compare the amount of freedom that Muslims have to practice their faith in Christian countries to the amount of freedom Christians have to do the same in Muslim countries, there is NO comparison. So, America once again will NOT be taking the xenophobia award anytime soon! B) Our history with this culture has been unfortunate--especially lately. Just as we now allow interracial marriage, someday, when our cultures have reconciled and are less threatened by each other, the definition of marriage here in the U.S. will accommodate those whose faiths allow polygamy. This too is a certainty. Meanwhile, what is a stake are the rights of any two consenting adults to enter into a union of exclusive love and establishing within that union the relationship of family. No ‘goal posts being moved’, no ‘definitions’ being changed. Throughout Western history, it has always maintained that adopted children have the same legal standing as those born to a parent. How then, should the informed consent of all parties involved be any less recognized or legitimate than decision of adults to adopt a child whom by definition cannot give such consent?
In a society that gives all consenting adults the right to marry without regard to citizenship, religion, race or moral character, denying gays the right to marry not says they’re less than citizens—it says they are less than human.
Keith J. Mohrhoff at 5:50PM on May 19th 2008
34. Jet- In short, yes. The 'art' of the dogma was to reinforce (in a picture-book fashion) the dogma that the peasants (pagans) might not get through the gobbledegook of Latin sermonizing. The 'sin' was overlooked, so long as it did not embarrass the Church- an early version of "don't ask, don't tell", if you will. Same with the priests. Problem arises when one cries out, and whose story is ultimately irrefutable. Then spin and cover-up are employed to obfuscate the problem. When that doesn't work, money is thrown at the plaintiffs. Sound familiar? "La plus ca change, la plus c'est la meme chose." My apologies to the French, accent marks aren't possible in this tiny little box.
Robert at 5:56PM on May 19th 2008
35. Why is Dinesh even worried about this issue? He and Ann Coulter aren't getting married, so it will never affect them.
Davidg at 5:56PM on May 19th 2008
36. "This, however, is not a right enjoyed by anyone else. In other words, gays are not asking to be treated the same as everyone else. They want special rights that no one else claims or enjoys."
Women have the right to an abortion, which is a right not enjoyed by anyone else. So, as a "special right" that requires that women not be treated as everyone else, this right should be denied to them. Is this a fair analogy?
Homophobes like you, DD, keep trying to make the point that gays want "special rights" when it is clear that they simply want to enjoy the rights that all other adults have, i.e. to marry the adult of their choice. Frankly, I don't see why you care. And, refering to their "choice" to act out their inate sexuality, this in an obviously unnatural way to live just to let you live in peace. There was a time when blacks could not marry whites, but society came to realize that there was no compelling government interest in preventing such marriages. It is just as obvious now with gays. Using the law to enforce your idea of proper relationships is a misuse of the government's authority.
Let me ask you this: Two gay men live next door but are unable to marry. Two gay men who live across the street are married because the street divides California from Arizona. You sit on your front porch and look out at the two houses. How has the marriage denied to your neighbor change anything?
Douglas F. Kirkwppd at 6:04PM on May 19th 2008
37. Dear Dubster-
This is a dead horse, and the fur is pretty much flying in the wind. The court did not 'arbitrarily' judge. They simply did what was right. Not descriminate against a particular group with an agenda- left, right or rainbow. And in the end, Gay marriage affects noone whose personal values are held steadfast. The world will not end as a result of this. The verity of Biblical truth is only valid to those whose beliefs adhere to such. Gays should not try to get married in the church, unless that particular church allows it. I see the same argument with Gay Mormons. And they don't get it. Until they alter the dogma prohibiting such things, they will not be accepted. And we all know, changing ANY dogma is futile, possible, but futile.
Robert at 6:05PM on May 19th 2008
38. MARLEN at 2:37PM on May 19th 2008
Marlen clearly exhibits the sort of hatred that Jews carry not just against Muslims but against Christians as well. Clearly there is a "Jewish Problem" but no one want to discuss it. Why is it that Jews feel so comfortable saying hatefilled anti-Muslim things but Jews cry foul when someone says something anti-Semtic? Americans have been sold out to Israeli interests; American Christians exits and toil to serve Judaism. What a lousy bargain...a bargain with the devil. By the way - if gays want to get married - who the hell cares? There is a hell of lot more horrible things going on - like the USA causing the murder 700,000 Iraqi civilians in the last 5 years.
Taylor at 6:08PM on May 19th 2008
39. You always hear these RepubliCons like DD moaning about something. Homos getting married, protect the kids, atheists are evil, whatever. Then you find out that they are really into kids, their gay, into hookers, drugs or the familly cow. Keep an eye on them. Sooner or later the real truth comes out. Just ask Ted Haggart and the rest of the RepubliCon crowd that has gotten bagged lately.
Larry at 6:08PM on May 19th 2008
40.
Oh, yeah, Taylor.
You're right. There ARE so many things worse going on.
Like murdering babies both in and out of the womb, kids in our schools killing other kids, marriages busting up because girls dressing like ho's and openly flirting with older, married men....
The list is endless
Taylor's hatin' again 'cause she's frustrated\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ at 6:21PM on May 19th 2008
41. #38 Taylor:
I think that you are reading far too much into Marlen's comment. She/he is a troll. Nothing more can be said with certainty except for that.
As for the rest of your complaints, I am not quite certain how to address them. If your only problem is that there is a double standard in which side is allowed to cry persecution in regards to debating over the Israel-Lebanon conflicts, I'd be all ears. When your complaint is that Jews are defaming Muslims (something I have yet to encounter myself, so it would be a matter that requires you to convince me), and you immediately dip into something that reeks of standard Zionist conspiracy theorist babble...I become more skeptical.
Anyway, word to the wise: if you want to criticize some party for being overly inflammatory and judgmental, try to be inflammatory and judgmental in that critique.
Asylum Seeker at 6:25PM on May 19th 2008
42. Scientifically speaking, homosexuality does not appear to be a 'lifestyle choice' anymore than gender or skin color. As such, it would appear to warrant the same type of equal protection.
Steve at 6:31PM on May 19th 2008
43.
"Almighty God created the races white, black, yellow, malay, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix," Judge Leon M. Bazile ruled.
Sound eerily similar?
T.Brough at 6:33PM on May 19th 2008
44. Sigh...the last lines should read: "try to be less inflammatory and judgmental in your critique".
Of course, seeing how the tone of my last post does not really sound as meek as I originally intended it to be, I hope you will not accuse me of hypocrisy on that matter. I do not mean to be confrontational, but you just seemed a little harsh in using the clearly off-base ranting of MARLEN (it is all caps, right?) to justify talking about Jew "problems" and some hate that they purportedly contain within themselves. Just being a busybody...
Asylum Seeker at 6:33PM on May 19th 2008
45. Mincpa, based upon part of your argument, people who are sterile shouldn't be allowed to get married either - it's ridiculous! No one is asking you to trade in your wife for a husband, so relax.
DD, homosexuals acting on their feelings is a choice? A choice between what - not experiencing a loving relationship with another human or a choice to copulate with someone they have no attraction to? You have the same choice to be by yourself or with someone you have no attraction to - how is that an acceptable choice for anyone! All your reasoning is simply a very eloquent self-justification to force your beliefs down my throat. I'm very happily heterosexual, but I don't presume to tell my neighbor how he/she should live their life - why do we care!? Believe it or not, he/she is going to make the same life choices whether they get this peice of paper or not. Furthermore - that's all we're talking about is a peice of paper - there are already gudelines in place giving all manner of partners the same benefits, etc. as married heterosexuals - so once again, why do we care?
Dubster, the voters voted against because the majority are closed-mided bigots (whether they/you want to accept that truth about themselves or not) and it was their vote that attempted to impose their own personal beliefs on the rest of us - the judges simply made an honest effort to uphold each of our rights as americans - americans-- gay, straight, white, or whatever -- we don't get to decide who others should or shouldn't choose to be with. As previous posters mentioned, it wasn't that long ago that interracial marriages were illegal....
We evolve folks - constantly. At some point in the future this will no longer be a debate, it'll be something else that our closed minds can't conceive of right now.
thinkin at 6:39PM on May 19th 2008