Strange Love

In August a federal judge in San Francisco ruled that
Proposition 8, California?s voter-approved ban on gay marriage,
violates the 14th Amendment?s command that no state may ?deny to
any person within its jurisdiction the equal protection of the
laws.? U.S. District Judge Vaughn Walker concluded that the ban?s
justification was so weak that it failed even the ?rational basis?
test, the highly deferential standard used in equal protection
cases that do not involve a fundamental right or a ?suspect class?
such as race (although he also argued that gay marriage bans
implicate both).
In addition to social conservatives, critics of the decision
included supporters of gay marriage who worry about the damage done
by result-oriented jurisprudence. While I share their concerns,
this objection to the equal protection argument for gay marriage no
longer seems decisive to me.
For one thing, I?m not sure it?s possible to prevent a judge?s
policy preferences from influencing his application of the law in a
case like this. No doubt a judge who was more alarmed at the
prospect of gay marriage would have reached a conclusion different
from Walker?s. But wouldn?t that judge also be guilty of letting
his social views shape his legal analysis?
Furthermore, there is a defensible constitutional argument that
the principle of equal protection, which says ?all persons
similarly situated should be treated alike,? means the government
may not discriminate between couples based on sexual preference.
Although the people who wrote and ratified the Fifth and 14th
amendments never imagined they were guaranteeing equal legal
treatment for homosexual couples, that?s because the very notion of
gay marriage would have been incomprehensible to them.
Treating all married couples equally, without regard to sexual
preference, seems like a straightforward application of equal
protection to a situation the Framers could not have foreseen, just
as they did not foresee television (which is nevertheless protected
by the First Amendment) or wiretaps (which are nevertheless
governed by the Fourth Amendment). Is that view a much bigger leap
than using the Equal Protection Clause to overturn bans on
interracial marriage, which persisted for a century after the 14th
Amendment was ratified?
I would much prefer that the government get out of the business
of certifying marriage altogether. But as long as myriad provisions
of state and federal law hinge on marital status, the government
has to decide which couples qualify, and basic fairness demands
that sexual orientation play no role in that determination. What
legitimate government interest can possibly justify preventing a
veteran?s longtime spouse from being buried alongside him, simply
because both of them are men? This sort of policy, which a federal
judge in Massachusetts overturned on equal protection grounds in
July, really is shameful.
I realize opponents of same-sex marriage think they have good
reasons for denying gay couples the rights and privileges that
straight couples enjoy, and they would argue that homosexuals and
heterosexuals are not ?similarly situated.? But you know what?
Screw them. I am tired of defending the constitutional principles
that social conservatives use to restrict liberty, because they so
rarely return the favor by supporting those same principles when
the effect is to expand liberty. When a supposedly principled
originalist like Antonin Scalia can endorse a ridiculously broad
reading of the Commerce Clause because the case involves pot, why
should I stick my neck out by arguing that the original
understanding of equal protection precludes its use in gay marriage
cases?
If there is a plausible constitutional argument for requiring
the government to respect people?s rights, as I think there is
here, those who value the Constitution as a means of protecting
freedom should not be afraid to use it. Without abandoning
intellectual honesty or the rule of law, we should prefer to err on
the side of liberty. 
Senior Editor Jacob
Sullum (jsullum@reason.com) is a nationally syndicated
columnist.

lesbian celebrity lesbian actors lesbian celebrities