Wednesday, October 22, 2014

Where's the Argument?

You (Americans) probably know, and may have forgotten from your consciousness by now, about the Supreme Court decision to ignore the cases made by several states concerning laws defining marriage as between a man and a woman. In a sense, they just dismissed what is probably currently the largest social policy issue of our day as not being worth their time. This infuriated me. I couldn't believe how they could just dismiss the case. You won't even give the states the right to defend themselves in this--a foundational social policy matter?

I guess the biggest think that irks me about it is that I don't even see where any sound argument in support of gay marriage comes from. The only thing I could think of that would make a law preventing gays from marrying would be the 14th amendment, in particular the 1st section:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Let's examine where this would supposedly come into the debate over gay marriage. My assumption is that they are referring to the final clause "nor deny to any person within its jurisdiction the equal protection of the laws." The argument then being that a law that makes gay marriage illegal denies gay persons equal protection of the laws. This is all just my guesswork, since I haven't actually heard the arguments in court. But it's kind of the general idea I've heard floated before. If any of you have any insight on what the actual argument is, I'd love to hear it. Because this version of the argument is absolutely indefensible.

Traditional marriage laws afford perfectly equal protection. Anyone who chooses to, as long as they are consenting adults, can get married. Nothing is stopping them. Homosexuals can get married. Nothing in a law that prevents people of the same sex getting married to each other denies any person the right to get married. No part of the 14th amendment is violated. And as far as I can see, no other part of the Constitution is either. So what right does any court of America have to declare such a law unconstitutional?

I could see some sort of argument presented in which they claim that the definition of marriage is ambiguous, and therefore have some sort of ground to argue the equal protection clause. It's a narrow ground at best, and it disappears when we look at the history of this debate. In 2008, the voters in the State of California chose to vote in favor of an amendment to their state constitution that cleared up any ambiguity by stating that marriage could only happen between a man and a woman. The courts declared this amendment unconstitutional--with such an amendment, the only way it could be declared unlawful is if it directly violated the federal constitution. Trusting Wikipedia on this subject, the Supreme Court again dismissed the case when it was appealed to its level--at least this time based on the fact that the proponents had no legal right to appeal in federal court rather than just dismissing the case altogether. The argument that it violates equal protection clauses is only based in a flawed understanding, then, of what marriage is.

I will refer you to the religious argument, since that is a major part of my belief on the subject. Yes, I do allow my religious views to shape my political views. In The Family, published by the Church of Jesus Christ of Latter-Day Saints, marriage is definitively defined as between a man and a woman. It goes on to describe several other details about how family should be run. I won't go into all those details here, but I invite you (even you readers who are members of the church) to read through this Proclamation to the World here.

Above and beyond that, however, is the very root of why the government is involved in marriage as a civil institution in the first place. Ryan Anderson articulates this better than I can, so I'll turn you to this video. It is an hour long, though, and should be followed up with the 30 minute Q&A session that follows--understanding that you don't necessarily have an hour and a half at your disposal, I'll do my best to summarize. Anderson talks about the reason government is invested in marriage--basically, why should the government care about tracking and legalizing marriages? Government's interest in marriage, he argues, comes from wanting to support the most basic and vital social unit. Government doesn't care about contracts between consenting adults to be exclusive sexual partners. Rather, government cares about supporting the best institution that allows for procreation, and the best environment for helping the children to become responsible adults. That institution is marriage--between a man and a woman. Married couples get federal benefits, not because they've agreed to be sexually exclusive partners, but because a married couple has been proven by social science to be the best environment for bearing and raising children. He also debunks the myth that a gay or lesbian couple is just as effective. The government has no reason to want to grant the same benefits to a gay or lesbian couple as a marriage.

What I've been trying to figure out now, is where's the argument? What support does any argument for laws banning gay marriage have? I haven't been able to figure it out.

1 comment:

  1. Sadly, David, I haven't been able to figure it out either. My personal (somewhat paranoid) theory is that the court is too afraid of the states having a good argument against being forced to allow gay marriage, citing the 9th amendment as their ability to do so, since regulating marriage is not specifically granted as a power to Congress.

    What I am really afraid of is the extreme, unchecked power that the judiciary is amassing. Judicial review is a dangerous power the court took upon themselves, and should be checked by both the executive and legislative branches having the ability to together overrule the judiciary.

    As I'm rereading this, I'm confusing myself as to what I'm trying to say. I think it's that I also don't accept the 14th amendment as a reason to allow gay marriage, and, in fact, probably would take it to mean that the states are allowed to ban gay marriage, if they do so consistently.

    Clearly, we have similar views. If I was a judge, you know how I would rule. Just like that judge in Tennessee, which seems to be how you would rule.

    There is injustice in the world. Jefferson points out that the judiciary is not magically more honest or perfect than any other group of men. Just keep on keeping on. Truth will prevail.