If during the course of some Twilight Zone moment I had found myself on the Supreme Court this past term here’s how I would have approached the gay marriage issue before the Court:
First, the objections to gay marriage.
1. Gay marriage is against religious teachings. Perhaps, but in a society whose core political charter guarantees free exercise of religion, this is an irrelevant argument.
2. Gay marriage goes against tradition. Perhaps, but then so does marriage based on companionate monogamy. Historically, most marriages were arranged by the families of the bride and groom, and polygamy was also widely practiced, at least among wealthy males. Additionally, an appeal to tradition alone often produces embarrassing results. Case in point: “Tradition” was one of the arguments used by slavery apologists in past times.
3. Gay marriage is unnatural. Perhaps, but the same was said at one time about interracial marriage, which was illegal in parts of the United States until 1967. It is doubtful that many Americans really want to go down that road.
4. A same-sex coupling does not produce children. No, it doesn’t. But then neither does a marriage between two sixty-five year old heterosexual partners. Besides, it’s not like the creation and raising of children is the only or even the primary function of marriage in our own culture. People get married for all kinds of reasons: romance, companionship, sex, money, social status, to defy their parents, immigration status, insurance benefits, and many other things.
Ideally, marital relations would not be a matter that involves the state. Instead, different religious and cultural communities would have their own standards concerning what constitutes a legitimate marriage, and the purely economic aspects of marriage would be no different that an ordinary business contract.
However, the fact remains that we do have state-sanctioned marriage, and this status conveys on marital partners a variety of legal benefits. Among these are inheritance rights, property ownership rights, survivor benefits in the event of the death of spouse, critical decision making prerogatives when a spouse is incapacitated, power of attorney, hospital visitation rights, the exemption of marital partners from testifying against one another in court, and a number of other things.
The Fourteenth Amendment guarantees equal protection of the law to all persons residing within the territory of the United States. This amendment was enacted after the Civil War for the purpose of extending (at least theoretically) to the newly freed African-American slaves the wider body of constitutional rights that had previously been denied. Fourteenth Amendment jurisprudence has since been the basis of a good number of rulings by U.S. courts pertaining to state policies of an overtly discriminatory nature, including bans on interracial marriage.
If I had been a Supreme Court Justice, I would have ruled that state policies conveying legally-sanctioned marital benefits on monogamous heterosexual couples alone violate the principle of equal protection of the law, as these discriminate against persons who prefer other kinds of marital relationships, including not only same-sex couples but also Mormon, Muslim, Hindu, pagan, Wiccan, indigenous African, or merely polyamorous polygamists, and marital relationships between close relatives.
Exempt from this principle of equal protection would be marriages between adults and children, humans and animals, live humans and corpses, or human and inanimate objects. It is also an established principle of the entire body of Western jurisprudence that marital relationships must be consensual. Forcible marriages (such as the Hmong practice of “bride kidnapping”) or compulsory arranged marriages are in conflict with the general right to liberty guaranteed by the Constitution. Children, animals, corpses, and inanimate objects are not conscious adults able to consent to a marital relationship.
However, while my own perspective on gay marriage is actually to the left of the ruling issued by the Supreme Court, I am less certain that this ruling is an occasion for ringing the Liberty Bell.
Gay rights advocates were on their strongest grounds when they argued that how gay people live their private lives is none of the state’s business. However, somewhere lines were crossed and the gay rights movement is now just another part of the totalitarian humanist coalition.
It is now the claim of the organized gay right movement and its supporters that gay relationships are very much the state’s business in the sense that gay marital couplings now represent yet another protected category of person who may legally abridge the associational, religious, economic, privacy, and property rights of others merely by virtue of claiming “discrimination” as the recent brouhahas over gay wedding cakes and religious bakeries have indicated. Already, efforts are underway to require clerics with religious objections to homosexuality to perform same-sex wedding ceremonies, and in some countries persons who merely speak critically of homosexuality may be jailed.
“What was once mandatory is now forbidden. What was once forbidden is now mandatory.”
A classic tactic of ruling classes is to identify a generally disliked minority and either attempt to inflame the passions of the majority against that particular minority OR to provide preferential status to the minority in question as means of creating alienation between elites and common people. Traditional American-style racism is an example of the former. The Belgians’ preference for the Tutsi minority in Rwanda is an example of the latter. And now the US and European ruling classes are using the same tactics in the West, particularly on this issue.
This is a weapon for securing the loyalty of the urban, cosmopolitan sectors of the professional, bureaucratic and technocratic classes, along with an influential and entrenched minority, against the conventional poor and working class who tend to be the most socially conservative on many issues, particularly this one.