The Country Thinker

Ran­dom Thoughts

When I announced my sup­port for gay mar­riage equal­ity, it was based on the sim­ple notion that deny­ing gay cou­ples the right to marry, under the law, is discrimination …

… Many Amer­i­cans have strongly held reli­gious beliefs and other opin­ions regard­ing gay mar­riage. Those beliefs should be respected. How­ever, it is not the busi­ness of gov­ern­ment to deter­mine which of those beliefs should be reflected as mat­ters of law or rights under the Constitution.

Pres­i­den­tial can­di­date Gary John­son, Feb­ru­ary 7, 2012

I sup­port mar­riage equal­ity for gay Amer­i­cans as required by the Constitution.

Plank 7 of 9 of Gary Johnson’s plat­form, from his Press Release issued Decem­ber 28, 2011

This isn’t a reg­u­lar post­ing day for me, but the 9th Circuit’s con­tro­ver­sial deci­sion issued yes­ter­day has thrust same sex mar­riage into the lime­light once again. Keep­ing with my promise to review all nine planks of Johnson’s plat­form that he announced when he threw his hat into the Lib­er­tar­ian Party ring, I’ll take on this issue since it’s a hot topic right now.

I’ve par­tic­i­pated in sev­eral online town­hall meet­ings with the Gov­er­nor, and his views on mar­riage are iden­ti­cal to mine. The gov­ern­ment has no legit­i­mate busi­ness reg­u­lat­ing or licens­ing mar­riage, but if they’re going to, same sex mar­riages must be treated equally. To con­ser­v­a­tives, I present the ques­tion thus:

Is a mar­riage valid when the reli­gious cer­e­mony is com­plete, or do you need the government’s bless­ing to val­i­date a mar­riage? If the bond is com­plete when made between God and the cou­ple, why do we need the gov­ern­ment to get involved?

As I’ve explained before, mar­riage licens­ing is a rem­nant of the Jim Crow era. The orig­i­nal def­i­n­i­tions of mar­riage were “between a white man and a white woman,” “between a col­ored man and a col­ored woman,” etc., etc. For those con­ser­v­a­tives who com­plain that lib­er­als and lib­er­tar­i­ans want to “change the legal def­i­n­i­tion of mar­riage,” I would ask if you sup­port going back to the orig­i­nal legal def­i­n­i­tion of mar­riage, or whether you see a Con­sti­tu­tional prob­lem with the Jim Crow-​​era def­i­n­i­tions that were right­fully changed.

While I don’t want this to turn into a debate over the­ol­ogy, I want to note that the Uni­tar­ian Uni­ver­sal­ist Church, the United Church of Christ, and the Evan­gel­i­cal Lutheran Church are among denom­i­na­tions that rec­og­nize and per­form same sex mar­riages. Other denom­i­na­tions such as the Epis­co­palian Church allow indi­vid­ual con­gre­ga­tions to decide whether to per­form same sex marriages.

I only bring this up for the legal/​constitutional rea­son that, in the present day, legally defin­ing mar­riage as only between a man and a woman is to choose one church over another. If an Epis­co­palian Bishop mar­ries two guys one week­end, I see no basis for any level of gov­ern­ment to deny that mar­riage equal legal sta­tus to the het­ero­sex­ual cou­ple the same Bishop mar­ries the fol­low­ing weekend.

Where lib­er­tar­i­ans like John­son and I part with lib­er­als on the same sex mar­riage issue is that we oppose that ele­ment of the LBGT move­ment that mar­gin­al­izes oppo­nents and seeks gen­uine “approval” of their lifestyles. That is what John­son meant in the open­ing quote when he said that the reli­gious views of oth­ers must be respected. As con­sti­tu­tion­al­ists, we are both vig­or­ous defend­ers of the Free Exer­cise and Free Speech Clauses of the First Amendment.

So, if you want to put up a giant bill­board in your front yard declar­ing “Mar­riage is between a man and a woman only!,” knock your­self out. I might think your pri­or­i­ties are a bit goofy, but that’s not my con­cern. I’ll defend your bill­board as well as the gay cou­ple next door who get mar­ried on their front lawn by their Lutheran minister.

The bot­tom line is that Gary John­son is cor­rect that as long as gov­ern­ments insist on licens­ing and reg­u­lat­ing mar­riage, the Con­sti­tu­tion requires same sex mar­riages to be treated equally in the eyes of the law with het­ero­sex­ual mar­riages. Pick­ing win­ners and losers at the altar is incon­sis­tent with the Con­sti­tu­tion and lib­erty more generally.

In any event, con­ser­v­a­tives are going to have to get used to legally-​​recognized same sex mar­riage, because I expect the Supreme Court to declare the right to mar­riage to be a fun­da­men­tal right with full Con­sti­tu­tional pro­tec­tion within the next year or so. (See the last para­graph of End Note 1.)

End Note 1: Analy­sis of Perry v. Brown

The 9th Circuit’s deci­sion is one that is going to leave every­one unsat­is­fied. (Pro­fes­sor Jacob­son has a pdf copy embed­ded at his blog Legal Insur­rec­tion. Warn­ing: it’s a beast.)

Con­ser­v­a­tives are pre­dictably unhappy that Propo­si­tion 8 was over­turned. But, the 9th Cir­cuit decided the case on the nar­row­est of grounds and did not declare the right of same sex cou­ples to marry to be a fun­da­men­tal lib­erty as lib­er­als and lib­er­tar­i­ans would have liked. Oppo­nents argued three dif­fer­ent bases for over­turn­ing Propo­si­tion 8, and because the 9th Cir­cuit found an “easy way out,” it did not con­sider the due process or equal pro­tec­tion arguments.

In other words, con­ser­v­a­tives should be thank­ful that the 9th Cir­cuit decided the case as it did, because, as it stands, it has no direct applic­a­bil­ity out­side California.

The majority’s logic works like this: There was a day in Cal­i­for­nia when mar­riage was only between a man and a woman. The Cal­i­for­nia supreme court, in The Mar­riage Cases (2008), extended full mar­i­tal rights to same sex cou­ples. Propo­si­tion 8 retracted these rights, and therein lies the rub. When­ever an act takes rights away from some indi­vid­u­als, or some set thereof, the state needs to have a com­pelling rea­son for enact­ing the dis­crim­i­na­tory act.

The court relied on the Romer case, which involved Colorado’s Propo­si­tion 2, which took away dis­crim­i­na­tion pro­tec­tion for homosexuals:

Romer … con­trols where a priv­i­lege is with­drawn with­out a legit­i­mate rea­son from a class of dis­fa­vored indi­vid­u­als, even if that right may not have been required in the first place.

For exam­ple, assume that before women were granted the right to vote via the 19th amend­ment (adopted in 1920), the state of Ohio gave Buck­eye gals the right to vote. At that time nei­ther the state nor fed­eral Con­sti­tu­tions were under­stood to give women a fun­da­men­tal right to vote. If the state decided to retract that right, accord­ing to the 9th Cir­cuit it should be treated as any other form of dis­crim­i­na­tory leg­is­la­tion, and the state must show a com­pelling inter­est for it to stand.

Although I wish that the 9th Cir­cuit had decided the case on broader grounds, I under­stand that the court was fol­low­ing stan­dard prac­tice to decide a con­sti­tu­tional issue on the nar­row­est grounds pos­si­ble. And unlike Pro­fes­sor Jacob­son, I don’t think the argu­ment here is cir­cu­lar in nature.

If the case lands at the Supreme Court and the Jus­tices agree that the 9th Circuit’s logic is faulty, it will be decided on broader grounds. If so, con­ser­v­a­tives can antic­i­pate that the right of same sex cou­ples to marry will be held to be a fun­da­men­tal right pro­tected under the Due Process Clause of the 14th Amend­ment. Don’t for­get that swing-​​vote Jus­tice Kennedy wrote the Lawrence decision—and it was a pas­sion­ate opin­ion; almost emotional—so I would antic­i­pate an easy 5–4 win for the GLBT crowd. (Unless Chief Jus­tice Roberts does an old Rehn­quist trick and votes with the major­ity so he can write the opin­ion and limit it as much as pos­si­ble. In that case it will prob­a­bly be 6–3.)

End Note 2

Quite dis­turb­ing is the argu­ment being made by Rush Lim­baugh and other con­ser­v­a­tives that the Perry deci­sion is an affront to Demo­c­ra­tic processes because it involved a cit­i­zen peti­tion passed by the vot­ers. Remem­ber that the def­i­n­i­tion of democ­racy is two wolves and a sheep decid­ing what’s for dinner.

Imag­ine if a highly Demo­c­ra­tic state—say Massachusetts—passed Propo­si­tion 1, which required all reg­is­tered Repub­li­cans to be rounded up and taken to a reed­u­ca­tion camp. Accord­ing to Limbaugh’s logic there is no con­sti­tu­tional infir­mity with Propo­si­tion 1 because it was passed by the voters.