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 7 of 34)
91. Strados,
Weren't Blacks really just the "new Jews" in their time?
Keith,
That sounds like shifting their own r/K population model to the r-side as a survival imperative. I believe in quality over quantity. I don't care if their populations are high, I just want them to be healthy and safe from all that suffering. This is the K-type of social/economic nurturing, but unfortunately they do not have the resources for this.
Mokele Mbembe at 9:17AM on May 20th 2008
92. Pro gay marriage or anti gay marriage, every single person on these boards should be angered by the fact that the California supreme court saw fit to over rule the vast majority of those who voted AGAINST gay marriage in their state. Why bother elect state officials or vote on referendums, why not just save a lot of time and money and have the courts tell us what we are allowed to do?
falling at 9:19AM on May 20th 2008
93. Why is it that Liberal & cultural Jews make the meanest pagans. They own the abortion mills, they promote same-sex marriage, thay completely bash Christianity, they control the media and most certainly they are completely obnoxious & pushy.
Its as if their post-Holacaust attitude has something to do with it. I didn't do nothing to them. Yet they are so nasty.
Wyatt at 9:24AM on May 20th 2008
94. falling,
Is the problem that proper legislative protocol wasn't effected, or that you don't agree with the structure of the legislative process?
Mokele Mbembe at 9:25AM on May 20th 2008
95. "While I agree with the point you are making, Senegal was a bad example. "
Keith, point taken, and thanks for the clarification.
brandon at 9:25AM on May 20th 2008
96. Hey! LET'S ALL BLAME:
1: God ; 2: Everyone Else; 3: NOT Me; 4: Them;
5: The Politicians; 6: The Government; 7: Those Other People;
8: Those Other People's Government; 9: People with More Money than We Have;
10: The Devil
Th1nkF1rst at 10:42AM on May 20th 2008
97. "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?"
What part of CONSENTING ADULTS don't you understand?
Tatiana at 11:18AM on May 20th 2008
98. "Pro gay marriage or anti gay marriage, every single person on these boards should be angered by the fact that the California supreme court saw fit to over rule the vast majority of those who voted AGAINST gay marriage in their state. Why bother elect state officials or vote on referendums, why not just save a lot of time and money and have the courts tell us what we are allowed to do?"
We should be angered because the government worked as it is designed? The Supreme Court decides on matters of constitutionality. Anytime that an unconstitutional law is passed, the Court can overturn it. That’s called the system of checks and balances. If you can’t understand that, you need to go back to high school Civics class.
If the entire state voted to make it legal to shoot people with red hair on the first Thursday of every month, should that stand, or do you want the court to rule it as unconstitutional?
Tatiana at 11:19AM on May 20th 2008
99. Renzo - there is nothing flawed about the notion that homosexuality appears to be less of a choice and more a function of biological programming. As we learn more about genetics it has become clear that many complex behaviors that we observe in other animals as well as humans have a strong genetic component. Many will say that there is no 'gay gene' but it appears that many if not most observable traits and variations observed in nature are the result of complex enabler or regulatory protein functions overlaying the gross functions of the genes themselves (evo-devo concepts). This should not seem to that hard to accept since at the pure gene level there is less observable variation than one might expect to see based upon morphological differences.
Examples such as gender are perfectly consistent with the interplay of genes and regulators since very gross distinctions can usually be observed at the gene level while more complex or subtle ones probably come about as a result of regulation. So one could easily have a gross trait such as gender and more subtle traits such as homosexuality without breaking any genetic models. Validated examples of these regulatory effects are becoming more common place as biologists have become more knowledgeable about how to look for them. These are exciting times in molecular biology.
Hopefully in the future biologists will be able to identify more of these regulatory pathways and put this issue to rest once and for all.
Steve at 11:32AM on May 20th 2008
100. dd,how dare you dismiss a claim by the proponents of gay marriage that something they claim is an insult to blacks. You regularly insult blacks with your flippant comments and comparisons, designed to elicit a laugh or guffaw at an entire people's expense. Thus, screw you. Dope!
America's Most Gangsta at 2:36PM on May 20th 2008
101. Mo- good point. I think the jews still have the number one oppressed spot
Strados at 11:44AM on May 20th 2008
102. I find it highly hypocritical that any Republican would use the phrase "equal protection hoax."
There was a HUGE hoax that was based on a twisted reading of the equal protection clause of the 14th Amendment.
It was the outcome of a case called Bush v. Gore, where they used "equal protection" as the excuse to stop counting ballots in Florida, despite it being required by state law.
The equal protection clause states: "No State shall...deny to any person within its jurisdiction the equal protection of the laws."
If that can be used to disallow a recount that was mandated by state law, it can certainly be used to disallow a state ban on gay marriage. I'm pretty certain that being a Republican is a choice, and that Republicans could "pass" for Democrats if they so chose. Well, maybe not the flaming Republicans.
Tatiana at 11:45AM on May 20th 2008
103. "Well, maybe not the flaming Republicans.
Tatiana at 11:45AM on May 20th 2008"
True. Their "wide stance" kinda identifies them.
http://www.urbandictionary.com/define.php?term=Wide+Stance
brandon at 11:50AM on May 20th 2008
104. http://www.youtube.com/watch?v=SJyCGltS95k
Terry at 11:53AM on May 20th 2008
105. PRO and CON
I disagree that gayness is a choice.
Being a hetero person in an artistic profession, I have known several gay people. It is my experience that some do choose it for various reasons, but most do not.
Many are actually female brains in male bodies or vice versa. There have been scientific studies done. Its a mix up during the formation of the fetus.
I also think a gay civil union should be allowed. It promotes monogamy. A good thing.
I don NOT think a Religious Marriage should be allowed if it goes against that religions holy text.
CON - Gayness is considered wrong by many cultures for genuine reasons. In that regard, it is like under age marriage, and polygamy etc. A person could argue the points and state that their rights are being violated. To most, it is black and white, to others it is a shade of gray.
There are examples where thinking out of the box can actually work.
(Example) A 18 year old wants to marry a 16 year old. In a different culture or country, that may be completly normal.
Scott Schenck at 12:05PM on May 20th 2008