Tuesday, April 9, 2013

Same-Sex Marriage: Both Sides Miss The Point

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Thompson's America

April 9, 2013


(Today's Feature)

Same-Sex Marriage: Both Sides Miss The Point

Thoughts while we await the Supreme Court’s decisions on same sex marriage: Most people, politicians and real people alike, can’t seem to make the distinction between druthers and constitutional mandates. We are now being inundated with polls showing a dramatic change in the opinions of the body politic concerning gay marriage. It seems that now most people think that same-sex marriage should be legally recognized. Presumably, this means that all of the state laws not allowing it should be struck down. Suddenly among most of the nation’s chattering class, anyone who thinks otherwise is a Neanderthal.

To a certain extent, both sides of the debate miss the point. On the same-sex marriage side, it is said that constitutional interpretation should comport with evolving public opinion, without the inconvenience of having to amend the Constitution. They believe that, unlike yesterday, today “equal protection” requires that states must recognize same-sex marriage; that “equal protection” means what it says. I assume that this would mean same-sex bathrooms at public facilities and a requirement that we draft women if we ever reinstate the draft. It would mean that a state could not treat adults and children differently in some cases. Such an interpretation of the equal protection clause would, of course, have been baffling to the drafters of this provision and to courts of the last 200 years. That clause means that those who are similarly situated must be treated similarly without good reason—a rational basis for not doing so.

The left call for the literal interpretation of the Constitution only when it fits their needs, and it is misplaced here. The “literal” wording of the 1st Amendment says that Congress shall make no laws abridging the freedom of speech or of the press, but we have laws prohibiting falsely crying fire in a crowded theater as well as laws against libel. The 2nd Amendment says that our right to keep and bare arms shall not be infringed, but there are numerous permissible regulations which qualify that right. Similarly, equal protection has never meant that all people must be treated exactly the same at all times, regardless of the circumstances.

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