Is There A Constitutional Right To Gay Marriage?


That’s the question the Associated Press asks, as reposted at The Blaze

Gay marriage supporters see 41 reasons to fret over the Supreme Court’s decision to take up the case of California’s ban on same-sex unions.

While nine states allow same-sex partners to marry, or will soon, 41 states do not. Of those, 30 have written gay marriage bans into their state constitutions.

That fact is worrisome to those who firmly believe there is a constitutional right to marry, regardless of sexual orientation, but who also know that the Supreme Court does not often get too far ahead of the country on hot-button social issues.

But, gay marriage advocates are positioning the coming SCOTUS review of the California marriage proposition and DOMA as one which will challenge and outlaw discrimination, much in the way that their decisions on sodomy, interracial marriage, and segregation laws did

The forces that mounted the legal challenge to Proposition 8 have said all along that the right to marry is so fundamental that it should not depend on success at the ballot box or the votes of state legislatures. Washington lawyer Theodore Olson, representing gay Californians who wish to marry, said he will argue that there is a “fundamental constitutional right to marry for all citizens.”

Is there a constitution right to marry? Much like the “separation of church and state”, this appears nowhere within any portion of the Constitution. There is no specific right for gay or straight people to marry.

But, one has to wonder about another part of the Constitution, equal protection under the law, which would also be known as equal treatment under the law. Yet, there are many cases where people are not treated equally under the law. People are taxed at different rates. Certain people who become political appointees are not prosecuted for tax evasion, while other citizens have their bank accounts seized and may do jail time. Women are mostly banned from combat positions in the military. The government ignores some laws at will. It institutes some laws affording certain pressure groups more protections under the law than others (hate crime legislation, for one). Should gays be treated the same under the law as straights who get married? Should gays be denied the same treatment as straights who are afforded the legal protections when it comes to things like visitation rights and property rights?

The problem is is that marriage should be left in the hands of the churches to decide. Yet, government has become involved in the process, requiring a license in order to be married in the eyes of the state. If we are a nation of law, not of men, should the government be required to give a marriage license to all citizens regardless of sexual orientation, but leave it up to the church to decide if it wants to perform a legal marriage ceremony? I’d have to say yes, regardless of any moral opposition I may have (note: I’ve always thought that the government should perform civil ceremonies, due to the equal protection under the law clause).

Crossed at Pirate’s Cove. Follow me on Twitter @WilliamTeach.

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