i'm taking something i wrote over at right thinking girl's and modifying it to be blogable. it concerns, of course, my trusty hobby horse, marriage equality.
When I say “the government does not have the right to do this”, I am being imprecise. The government doesn’t have rights. What the government has are powers, powers that we the people have given it and, theoretically, can take away at will. Any power that we have NOT granted the government, the government clearly does not have. Now for a question and answer session:
Have we granted the government the power to recognize marriages?
Have we granted the government the power to decline to recognize a marriage?
Are there restrictions on that power?
There are - any law, including those that decline to recognize (grant licences to) certain marriages, must pass constitutional muster.
Do laws that decline to recognize same-sex couples’ marriages pass constitutional muster?
They potentially do not.
Why might they not pass consitutional muster?
Because they rely on sex-based classification, which is often found to violate the equal protection clause of the constitution. For example, Mary applies for a marriage license with prospective co-licensee Alex (male), and the marriage license is granted. However, when an identical Mary applies for a marriage license with a prospective co-licensee Alex (female) who is otherwise identical to Alex (male), the application is denied. The decision therefore hinges on the sex classification of Alex.
Have we given the government the power to discriminate based on sex classifications?
Are there any restrictions on that power?
There are - a law which discriminates based on sex must pass heightened scrutiny: it must serve an important governmental interest, it must have an exceedingly persuasive justification, and the law must be substantially related to that interest.
Is there an important governmental interest that one can give an exceedingly persuasive justification that it is served by the laws that base marriage recognition on sex classifications?
There is not. A justification that is based on circular reasoning [gay marriage weakens marriage, because marriage is weakened by gay marriage] is not exceedingly persuasive. A justification that is based on children being endangered by being raised in gay families is neither particularly germane nor exceedingly persuasive - I’ll be generous and say that the evidence for that case is “ridiculously feeble”. A justification that is based on the irrational gut feeling of a small majority of Americans is not exceedingly persuasive, nor is protecting that small majority from feelings of discomfort an important government interest.
Q.E.D. If we can’t come up with an important state interest and an exceedingly persuasive reason that this important state interest is served by these laws, they are unconstitutional, and they are therefore not something we have given the government the power to do.
Those who oppose the government recognizing same-sex marriages have run many, many interest/justification combos by me before, and I’ve demonstrated why those justifications are not actually persuasive at all, much less exceedingly persuasive. If you’d like to give it a go, I’m more than willing. I love pointing out logical fallacies and bad assumptions. Please put submissions in this format:
" _______ should be considered an important government interest because ________ and is substantially served by laws that base marriage license decisions on sex classification because _________."
I ask this because it will, perhaps, eliminate the most irrelevant arguments before they even get here, because they won't fit into the format. If they don't fit into that format, they do not address the constitutional issue at hand. For instance, "Any changes to marriage should only be implemented by the legislature" does not fit into that format, for good reason: It's irrelevant. If the law is unconstitutional, it's unconstitutional; thus, if that is the case, at least one change to marriage is clearly not dependent on the legislature, assuming we agree with the established precedent that the Supreme Court has the power to overturn laws that it deems unconstitutional.
Let’s just skip that part, though, and get right to the admission that these laws do not pass heightened scrutiny (what sex-based classifications must pass), not to mention the more stringent strict scrutiny, which other suspect classifications merit and which sexual orientation may someday also merit.
Changing the rules and writing it into the constitution that the government does actually have this power even though the rest of the constitution seems to indicate that it shouldn’t is the only recourse for opponents of my marriage. But if they manage do that, I'll take solace in the fact that they’re only putting off the inevitable. Eventually, such an amendment would go the way of prohibition - I like to think that a constitutional republic abhors amendments that restrict freedoms like nature abhors a vaccuum.