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Friday, October 17, 2003

Andrew Sullivan and David Frum have an interesting editorial skirmish over gay marriage, and whether or not it ought to be allowable. I thought I'd share my thoughts on the matter.

One of the most common things people bring up when they talk about rights in our country is the constitutional issue. Let's go over this briefly: There is nothing in the constitution which says that gays have a right to marriage becuase straight people do. As long as some purpose to marriage can be shown which needs to extend to hetero couples but categorically does not apply to homosexual couples, it passes the equal protection test. I'd argue pretty simply that marriage sets up conditions where people who want to have a child in the future (say, nine plus months) can expect a measure of stability and protection for that union. This is completely unique to heterosexual couples. People typically talk about adoption here, so let me talk about that. Adoption is distinct insofar as you get the child more or less immediately. You know what condition you are in at the point where you get the kid. Granted, there's still future uncertainty, but that's true in either case, and the government isn't obligated to protect against that, since if after the child is born there is a catastrophic problem, they become wards of the state - something which cannot happen during gestation. That's enough to jump the constitutional hurdle.

The other constiutional issue, which Sullivan brings up to start the whole debate, is whether or not the ruling in Lawrence v. Texas "legalizes" sodomy. It strikes down sodomy laws, but the decision, if you read it, does so on the basis of right to privacy. This doesn't mean the court sanctions sodomy, nor does it mean that they disagree with these types of laws in principle, it just says that the right to privacy overrides it to a sufficient degree. This is not something you can do with marriage. A marriage is, by its very nature, a social entity, something which is contractually enforcable by the state. Saying you have a right to privacy which allows the courts to specifically enforce things is ludicris.

But that's sort of the key. I'm not sure if anyone has argued this before a court before (since I'm not so much a constitutional scholar), but Article I, Sec 10 of the constiution lays out the prohibitions on state power:

Section 10. No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

I'm curious if this could be applied. If two people enter in to a contract (marriage), can the state really nullify that without violating their constitutional obligation? I just thought of this, so hopefully someone can tell me if this has been discussed before. I haven't seen it.

Well, this ended up being more rambling than I expected since I changed my mind part way through. But so it goes.

cranked out at 12:14 PM | |

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