With Proposition 8 ruled as unconstitutional by California’s 9th Circuit Court of Appeals recently, it’s as relevant a time as any to talk about one of the biggest issues people bring up in terms of legalizing gay marriage, especially by judicial or federal force as was done in 1967 on the issue of states rejecting interracial marriage. Is the first amendment’s explicit protection of free religious exercise greater than the implicit right to marriage considered to exist under the fourteenth amendment’s right to privacy? Does a person have a right to refuse service based on religious convictions and/or discrimination towards a person’s sexual orientation that results from it? While sexual orientation is not technically protected under the Civil Rights Act which, as of 1988, protects from discrimination based on sex, gender, religion, race, ethnicity, disability or having children, it is not unreasonable to be considered a class of people protected from discrimination based on a simple legal definition of what it consists in: the prejudicial treatment of an individual based on their membership in a certain group or category. This also includes behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. Another definition would be formulating opinions about others and associated treatment of them not based on their individual merits, but rather on their membership in a group with assumed characteristics, as was put forward by the Denzel Washington’s character in Philadelphia. People, for whatever reason, think that gay people are not deserving of equal treatment and think they can get away with it because there isn’t a law against it. Refusal of service is certainly something that is permitted even by public accommodations, places of business that are privately funded at least in part, but also take in money from the public, such as restaurants, hotels and wedding vendors. But this right, as with many others we take for granted, have limits established by the law in order to protect the rights of others in that same capacity. This includes one’s right to refuse service and the right of free religious exercise, both of which are intrinsically connected to future legalization of marriage in this country, state by state or on a federal level by constitutional amendment or other similar binding authority.
Both the Defense of Marriage Act and Proposition 8 have had their constitutionality challenged multiple times, and President Obama and the Department of Justice have refused to defend the DOMA in the future, which is now being defended by the House of Representatives. Proposition 8 has had multiple appeals trying to overturn it on the basis of its unconstitutionality and it was rendered temporarily invalid to be enforced in California and with the ruling the 9th Circuit Appeals Court ruling, it is likely to be taken to the Supreme Court. Any marriages that were done before Prop 8 were not invalidated by the ruling due to it being a prior law that did not explicitly contradict Prop 8, since gay men and lesbians are considered a suspect class, which I’ll discuss soon, for the Equal Protection Clause of the fourteenth amendment. This is the silver lining of sorts, but the future possibility of gay couples getting married in California is still up in the air because of possible rulings.
If there is a right to marriage in the Constitution, even implicitly, why does it not also involve same sex couples? This isn’t even an issue of polygamy’s legality, but whether a coupling that is only superficially different from the common form should be considered any different under the law, irrespective of traditional influence of the latter. Advocates of maintaining traditional marriage say that there is no right to “gay” marriage but then neglect to explain how this is so considering the right to marriage is very much implicit under the right to privacy. If the right to have homosexual relations in the privacy of one’s own house, like heterosexual relations, is protected implicitly by the constitution, then is same sex marriage not also protected as opposite sex marriage is? It’s one thing to oppose same sex marriage on personal grounds, but legally, there is no reasonable standard or justification for the discrimination that over half of the country advocates either through law or state constitution.
Homosexuality does not prevent people from contributing to society in a meaningful way, they have been persecuted as long or longer than many other classes that are treated far better in the 21st century, including blacks and Catholics, they have had little success in protecting themselves from discrimination through political process and have an immutable trait, contrary to people’s insistence that they can change. The traits just listed are a start to consider homosexuals a suspect class, or in more accessible terms a protected class, just as much as heterosexuals or bisexuals, or even asexuals. If we’re going to protect sexual orientation, we should be fair and treat everyone the same in this regard. As unlikely as it might be for a business to do what many have done across the country for one reason or another, refusing service to people because they were gay, we shouldn’t assume that heterosexuality could be discriminated against like homosexuality is today in isolated instances.
No one is forcing churches or private organizations to officiate wedding ceremonies or accept them into their ranks. A public accommodation, such as a wedding cake vendor, is not subject to the protection we grant churches in terms of refusing service. You can personally disagree with such a thing, but when you put yourself in a position where gay people are likely to be involved, such as wedding cakes, adoption agencies or the like, you aren’t making it easier on yourself when you come up against something objectionable to your religious sensibilities, which was bound to happen at some point or another in such a diverse society as the United States. Expecting the country to respect religion and religious support for discrimination against gay people on an issue that is not strictly the realm of religion, but also secular society, is asinine and irresponsible. Not to mention it smacks of favoritism of the worst kind, based in tradition. If we had respected tradition instead of the law, we’d still have bans against interracial marriages. The next thing to eliminate is the prohibition against granting the rights and the title of marriage to same sex couples, treating them as if they need to be kept in a cage to protect opposite sex couples. Gay marriages certainly don’t threaten most people’s marriages or even the validity of them under law or tradition.
It’s a cliché, but love is love and to sanction this sort of behavior against a certain group of people in love and wanting to commit under this title is unnecessary, but also un-American. I don’t use that term lightly. If America is a place that welcomes those willing to make certain sacrifices, then America as a whole should be willing to make a sacrifice of their own to progress into the 21st century: give up your antiquated ideas of what an ideal family should be and that people should meet up to that. Family is not based on biology, it is based on environment and nurturing from that environment. If I’m raised by my relatives because my birth parents die, they are my parents. If I’m raised by adoptive parents because I was given up by my immediate family, then they are my family. Family is something conservatives value, as is marriage. As I spoke about in “A Conservative Approach To GayMarriage,” it is incumbent upon conservatives to appeal to their values instead of their wallets. And to follow those values consistently is to allow gay marriage, even if you personally disagree with homosexuality as a matter of religious values. Politically and legally, gay people do not deserve this treatment. Compared to pedophiles, accused of corrupting children, denied adoption because of that unfounded assumption that they cannot be parents. If you are for following the Constitution, then it is even more imperative that you allow this as a conservative. You are not violating religious freedom when you force the state to recognize a partnership that is not solely the realm of religion. And you are not being constitutional in denying the right to marriage when same sex marriage poses no demonstrable threat to the state’s interests. The right to marry is considered fundamental, so protect is as you also protect religious freedom. Until next time, Namaste and aloha.