Precedents leave no option but legalization
I’m sure most of you are aware that the U.S. Supreme Court is hearing two cases having to deal with gay marriage this week — one on the Defense of Marriage Act (DOMA) and the other on California’s Proposition 8 (which overturned a state Supreme Court decision allowing same-sex marriage).
The publicity from these cases has sparked a new wave of debate about the morality of same-sex marriage on forums ranging from the New York Times to Facebook. However, what many people seem to forget is that the Supreme Court isn’t deciding whether same-sex marriage is right or wrong, only if it’s legal within the constraints of the U.S. Constitution.
One of the key issues in the legal debate is Federalism and states’ rights. “Traditional” marriage advocates say that overturning DOMA will force states to recognize same-sex marriages, violating those states’ rights to define what marriage is in their jurisdiction.
The second key legal issue is discrimination. The Fourteenth Amendment to our Constitution guarantees that, “No state shall … deny to any person within its jurisdiction the equal protection of the laws.”
This amendment was applied to marriage laws in the 1967 case, Loving v. Virginia, when an interracial couple, Mildred Jeter and Richard Loving, were jailed for getting married. Virginia’s lawyers argued that the laws were not in violation of the Equal Protection Clause. The Supreme Court unanimously found Virginia’s claim to be cockamamy and overturned the “Racial Integrity Act,” recognizing that Loving’s individual right not to be discriminated against trumped Virginia’s right to define marriage.
It’s time to apply this amendment to marriage laws again. Laws which define marriage as a union between a man and a woman are just as discriminatory as laws which defined marriage as between two “whites.” Saying marriage equality gives everyone an equal right to get a straight marriage is like saying religious equality gives everyone an equal right to practice Pastafarianism, but no other religion.
The Supreme Court has previously found, and will find again, that all men and women are created equal. Individuals have a right not to be discriminated against on the basis of race, sex, religion, creed, national origin, disability, sexual orientation or anything else. We may not achieve marriage equality in 2013 (interracial marriage didn’t succeed on its first try either — see 1883’s Pace v. Alabama). However, each day, more Americans are becoming increasingly accepting of gay rights. The question is no longer if, but when, the wedding bells will ring.