22 Feb 2004 Man-Woman Marriage is Not Unconstitutional
Speaking of Andrew Sullivan, he writes this (2/17): “…under almost any rational understanding of equal protection, civil marriage has to be extended to gay couples.”
Ah, no. Silly (though dangerous) statement, really, and one he only gets away with because most people haven’t thought about these issues and many of the ones who have thought about it have a conflict of interest.
Sullivan’s statement relies on an improvable 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.
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 represent a distinct class under the law.
If Sullivan was right, which he is not, 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.
Now, many of those in Sullivan’s camp will tell you that I’m wrong because sexual preference (a term many abhor, but nonetheless the one that seems most accurate) is, they say, 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 birth characteristics as a basis for constitutional interpretation.
This is true in part because even if, perhaps especially if, sexual preference is something we are born with, other personality traits are inborn as well. If one’s “sexual personality” elevates them into a protected class, why not 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?
If you think this notion is ridiculous, recall that the idea that the Constitution guarantees a right to same-sex marriage would have been perceived as preposterous 20 years ago. And remember 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 anyone can 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. 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. But our marriage laws, as written, are not unconstitutional.