Denying Same-sex Marriage Isn't Unequal Protection

An Iowa court recently ruled in favor of six same-sex couples who claimed that denying them the right to marry violates the equal protection clause.  This argument seems reasonable at first.  Straight people can marry.  Gays cannot.  This is not equal protection.  A little reflection, however, reveals how this view is mistaken.

Denying same-sex couples the right to marry does not violate the equal protection clause.  Homosexual individuals have the same rights and restrictions as heterosexuals. 

There is no legal right granted to a heterosexual that does not apply in exactly the same way to every homosexual.  Both can marry in any state.  Both have the liberty to marry someone of the opposite sex.  The marriage law applies equally to each person, whether gay or straight.

There is also no legal restriction applied to homosexuals that does not also apply in exactly the same way to every heterosexual.  Both are restricted from marrying someone of the same sex.

Homosexuals cry foul, of course, because they can’t marry the person they want to marry.  The article states that current marriage statutes are “an absolute prohibition on the ability of gay and lesbian individuals to marry a person of their choosing.”  But no one, gay or straight, can marry anyone of "their choosing.”  Marrying your sibling, your child, or another married person, for example, is prohibited.  Again, the restrictions are the same for all individuals.

Greg Koukl's illustration is helpful.  “Smith and Jones both qualify to vote in America where they are citizens. Neither is allowed to vote in France. Jones, however, has no interest in U.S. politics; he’s partial to European concerns. Would Jones have a case if he complained, “Smith gets to vote [in California], but I don't get to vote [in France]. That’s unequal protection under the law. He has a right I don’t have.” No, both have the same rights and the same restrictions. There is no legal inequality, only an inequality of desire, but that is not the state’s concern.”

Restricting same-sex marriage does not violate the equal protection clause.  It simply prevents people from defining marriage however they want – a restriction everyone shares equally.

For a more detailed analysis of same-sex marriage, read Greg's articles at Townhall.com and our website .

Comments

[Mo]

These are great points. But because this topic is always and only discussed on a basis of emotion, it won't get anywhere with people. Maybe this would be useful on the legal aspect of it, but as far as speaking to individual people about this subject, it's going to go in one ear and out the other.

The only thing they see is 'You can marry whomever you wish, and I cannot.' As you illlustrated, heterosexuals have the same restrictions about not marrying relatives, siblings or someone who is already married.

This entire subject is always discussed on the level of emotion, and that is all.

[Shane Vander Hart]

Great post. Homosexuals do have equal protection under the law. What they desire is special rights.

Allowing gay marriage will eventually open the door to other types of "marriage".

[Mike R.]

Great post. That's a point I've made whenever the topic comes up. I usually get blank stares when I say that homosexuals can get married just like heterosexuals can.

[JackM]

So perhaps this is what you had in mind...

I am a gay man, and have been living with my partner for 29 years. We live in a state without domestic partner benefits, and no hope of seeing them anytime time soon.

After we had been together for 7+ years, we decided that we needed to legally protect one another, especially considering the hostile attitudes from some of our family members. We were very good friends with two lesbians who were in the same situation. We decided to (cross) marry in order to protect our respective partners. For example, my partner was self-employed, so he married the lady friend that was employed by a government agency so that he would have medical insurance. My "wife" was in a similar situation. We made prenuptial agreements to ensure that we respected one another's rights to property, debt, etc. This partnership has helped us in numerous situations.

As for the argument that not everyone can marry who they wish... I would remind you that the government used to restrict interracial marriage, but (only recently) found that the state had no compelling reason for that restriction. There are compelling reasons for restricting blood relations from marrying. But are there compelling reasons (for the state) to deny people of the same sex to enter into a marriage contract?

Which is another point.... from the state's point of view, marriage is only a legal contract between two individuals of opposite sex. Does the state really care what gender's are involved in a contract? Is the restriction on gender for this one kind of legal contract arbitrary, or does it in fact serve some purpose?

Note that none of this applies to the religious wedding ceremony. Religions can put whatever restrictions they so desire on their adherents.

By the way, your argument about the U.S government being able to grant the right to vote in France is meaningless. The U.S. government cannot grant or deny that right. It is the choice of the government of France. And here, we are only talking about rights that the U.S. government can grant. In fact, France does grant the right to vote for its citizens who live outside of its borders, as does the U.S. for our citizens. And the U.S. would not be able to deny a French citizen the right to vote in a French election. So your argument makes no sense, and does not apply to the current topic.

So... it would seem that we have met your standard for marriage, but I am not sure that is what you intended. This puts a whole new meaning on marriage and traditional family values. Is tis what you have in mind?

[CJL]

JackM,

Thank you for posting your comments, very well thought out. You brought up some good points but I think you are missing the point with Koukl's analogy. He is not talking about a citizen who is living abrod, whether it be French or US, their location has no bearing on whether they can vote or not. What is the issue here is whether a citizen of country A, who is not a citizen of country B, can petition the government of country A to vote in country B. That is the point of Koukl's analogy. The government of country A cannot give a citizen of its country the legal status to vote in country B.

When we apply this the homosexual debate all people in this country are granted the SAME rights regarding marriage. We all have the right to marry, its who we choose to marry, as was pointed out that noone, not even I myself a heterosexual, has the right to do. I am not legally able to marry my mom, sister, daughter, son, uncle, etc. I am legally bound to not marry certain people, the same as homosexuals. We all have the same EQUAL rights. What Koukle is pointing out is that to grant rights to a homosexual that cannot be conferred to a heterosexual is not EQUALITY. By granting them the right to marry whomever they choose and yet I cannot choose the homosexuals have more freedom and rights than anyone.

That is what is wrong, as has been stated, with the gay-rights ammendment. It gives special treatment privilege status to a tiny minority (less than 5% of US population) that cannot be granted to the other 95%. It is creating an elitist class within society that is not granted to anyone else.

Hope this clarifies.

Blessings,