Equal Protection Under the Law: Is Andrew Sullivan Right About Gay Marriage?

Andrew Sullivan, likely the nation’s most prolific defender of gay marriage, offered this opinion on February 17: “…under almost any rational understanding of equal protection, civil marriage has to be extended to gay couples.”

Sullivan relies on an unprovable and unsound assumption, that is, that there is a class of people who are inherently separate and distinct from other people based simply on their announcement of a preference, even a temporary one, for sexual relations with a person of their own gender.

In other words, Sullivan believes the Constitution requires the law to accommodate, by requiring the rewriting of long-held laws and the abandonment of fundamental assumptions about society and morality, the notion that these individuals have determined for themselves that they represent a distinct class under the law.

If Sullivan is right, any group anywhere could announce themselves to be a distinct class under the law, simply by asserting a preference contrary to the established norm in a matter regulated, subsidized, or affected by government policies. That is, after all, essentially all the homosexual advocacy organizations have done.

Many of those sympathetic to Sullivan’s position will disagree, saying sexual preference (a term many abhor, but nonetheless the one that seems most accurate) is something people are born with. Setting aside the notion that this is not scientifically provable (though it is possible to prove it is not wholly true — there are persons described as “ideological lesbians,” that is, extreme feminists who have made an intellectual decision to engage in intimate relationships only with women), it would be a bad precedent to use personality characteristics as a basis for constitutional interpretation.

Even if sexual preference is something we are born with, other personality traits are inborn as well. For example, if one’s “sexual personality” elevates a person into a protected class, why not another common personality characteristic: shyness? Most people believe some people are born shy. Shy people may well suffer a financial disadvantage in a competitive capitalist economy. Should shy people be accommodated as a protected class under the law? After all, shy people probably aren’t faking it. Who would chose to be born shy?

Those who consider this to be ridiculous should remember that, twenty years ago, the notion that the Constitution guarantees a right to same-sex marriage would have been perceived as preposterous. And they should consider that there are lawyers out there who make big money litigating on behalf of protected classes. The more protected classes there are, the more money they potentially can make.

“Shyness” might never qualify a person as a member of a protected class, but if we follow the Sullivan School of Jurisprudence, we can be certain some new classes will form, and the basis of some of them may amaze us.

One need not consider the probability of the development of new protected classes, however, to see that Sullivan is wrong that the Constitution’s equal protection clause mandates that everyone has an equal protection-based Constitutional right to marry whomever they wish. (Sullivan would never phrase it that way, but that’s what his assertion comes down to.) No one can do that.

Every American of legal age, excluding some deemed mentally incompetent to fulfill a contract, is treated the same by our marriage laws. We can only marry if we are unmarried, and if the person we wish to marry is eligible to marry. We can only marry a person if that person wants to marry us back. We can’t marry a close relative. And, yes, we must marry someone of the opposite sex.

Equal rules. Equal protection. Anyone who wants to follow the rules of marriage can marry. Anyone who doesn’t, doesn’t have to.

Andrew Sullivan has the right to want to change our marriage laws. However, our present marriage laws are not unconstitutional.

Amy Ridenour is president of The National Center for Public Policy Research, a non-partisan Capitol Hill think-tank.

The National Center for Public Policy Research is a communications and research foundation supportive of a strong national defense and dedicated to providing free market solutions to today’s public policy problems. We believe that the principles of a free market, individual liberty and personal responsibility provide the greatest hope for meeting the challenges facing America in the 21st century.