Freedom of Religion Argument for Gay Marriage
Alright, one of my random passions is Supreme Court law. Don't ask me why I just enjoy reading ridiculously boring Supreme Court decisions. As you probably know there is a case for gay marriage rights making its way through the court system and will almost certainly end up in front of the big court. As a libertarian I am a supporter of gay marriage (although as a divorced man I don't think gays should be so eager to get married) however I have serious issues with the arguments the gay rights lobby is using in court.
They are trying to make the case that marriage is discrimination toward gays and the government. They are trying to use the 14th Amendment, in particular section 1 which states in part
"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."
The claim is that gays are not receiving "equal protection of the laws" because heterosexuals can marry under the law and they can't. Constitutionally this is a very weak argument because if you take two people call them John and Jerry either one is allowed to marry someone of the opposite sex and neither is allowed to marry someone of the same sex. The fact that Jerry wants to marry another guy and John does not does not mean the law is being applied unequally. Just because one person WANTS to do what is illegal and another person doesn't makes no difference. If the Supreme Court ultimately upholds the decision (which it wont) the result would be a precedent for judges to legalize anything they wanted using the 14th Amendment. For example, if John wants to use cocaine and Jerry doesn't is the law against cocaine unconstitutional? If Jerry wants to own a nuclear weapon but John doesn't is it unconstitutional to ban private ownership of nuclear weapons? Such a decision would put the court in control of what is legal and what isn't which I am strongly against even though I am sympathetic to the efforts to legalize gay marriage (and cocaine).
The 14th Amendment was passed to outlaw slavery. Before the 14th Amendment the Bill of Rights did not apply to the states in any way. Thus states could pass laws targeting specific groups of people (blacks) and removing their rights of speech, religion, guns, cruel & unusual punishment, search & seizure etc. Only the federal government was restricted by the Bill of Rights. So the 14th attempted to ensure that newly freed slaves would be assured the same rights as all other citizens and prevent states from passing laws that singled out particular groups.
Over the years, it has become mostly accepted that the 14th Amendment applies most of the freedoms of the Bill of Rights to the states. The Supreme Court struggled over this point a little with many arguments over exactly what are the "privileges and immunities" of being an American citizen. Some wanted to simply use the entire Bill of Rights as a complete list but that runs into problems because the entire Bill of Rights wasn't written with the idea of it applying to the states. Namely amendments 3, 9, and 10 can't apply to the states because they specifically address the federal government. Most modern case law applies the other seven amendments to the states although there are still quite a few questions about the 2nd Amendment and the extent to which states can regulate firearms.
The right to privacy eventually came out of the "privileges and immunities" idea, mostly from cases involving laws against contraceptives, sodomy and of course the infamous Roe v Wade. Even though the courts could never really describe where it came from the idea that there are certain areas of life the government can't interfere in became popular among liberal judges. My problem with this doctrine is that it is completely arbitrary and makes who is in the judges seat extremely important and political.
My legal argument for gay marriage lies in the 1st amendments protection against prohibiting the free exercise of religion. Marriage is fundamentally a religious institution. Even I, an avowed atheist, was married by a pastor. Different religions hold different views of what marriage is and what types of marriage or acceptable. Just because Christianity and other religions that promote monogamous male-female marriages are the majority does not mean that belief in other marital structures does not exist in other religions. The 1st Amendment was intended precisely to protect the rights of the MINORITY. By arguing that marriage itself is inherently a religious institution it readily follows that the government approving of marriages from one religion while outlawing marriages from another is blatantly unconstitutional.
This case has come up before in Reynolds v. United States where a Mormon was fighting laws against bigamy. In one of the worst decisions in history the court claimed that the government could regulate actions and so while Reynolds could believe it was his religious duty to marry more than one wife the government preventing him from doing so did not prohibit the free exercise of his religion. They compared it to the government outlawing human sacrifice even though some religions might believe in it. Obviously, this is only a straw man argument because the Supreme Court deals with similar issues all the time. For example, you have freedom of speech but you can't call someone on the phone and harass them. You can't yell FIRE! in a crowded theater. The courts have routinely declared that all of your freedoms end where other peoples freedom begins. Is it so unreasonable to expect that we can decide that marriage between any number of consenting adults does not infringe on the rights of non-involved parties while human sacrifice does? The line of legal reasoning certainly becomes less arbitrary then the line the courts are currently following.