Wednesday, March 27, 2013

The Constitutionality of Gay Marriage and Why the GOP Should Suport It

Although I consider myself a progressive and a Republican, I have always been somewhat reticent about using the courts to mandate social change. My sense is that issues engender broader and deeper acceptance when that acceptance sprouts from the grassroots. On the issue of gay marriage, or more correctly the “right to marry,” society is clearly showing a great capacity to no longer marginalize homosexuality and gay marriage. But some issues are so fundamental that it becomes necessary for the courts to lead and recognize the existence of rights basic to all citizens. The right to marry is such a basic right.

The Declaration of Independence provides the foundation for our nation’s existence, and the belief that all men have inalienable rights to life, liberty, and the pursuit of happiness would seem to embrace a right to marry. I see marriage as an element of the right to life and liberty, but It is also generally accepted that the statement “pursuit of happiness” was code for the right to property; it cannot be denied that marriage can be seen as a contract that includes the transfer of property during the life and with the death of the parties involved.
The Preamble to the Constitution reiterates the primacy of these rights; it is hard not to see the right to marry as one of the “blessings of liberty.” Further, the Bill of Rights includes several rights from which one can argue this right. The Ninth Amendment, which I realize many people scoff at, was included to insure that rights not listed are nonetheless inalienable rights reserved to the People. The right to privacy and the right to vote are often mentioned as rights embodied in the Ninth Amendment, so to is the right to marry.

It could also be argued that the First Amendment’s right to association might include a right to marry. It is hard for me not to think that the decision of someone to “associate” with one individual in perpetuity (at least in theory J ) not be a protected relationship.
The 14th Amendment’s right to equal protection also provides a strong basis for acknowledging a right for gay couples to marry. The question here is what standard of scrutiny the court decides to use, and I would think that since gender is clearly a consideration, especially in the right of lesbians to marry, that a heightened scrutiny standard would be appropriate. This would present a serious challenge to government’s power to exclude gays from marrying as it must prove an “important government interest in a way that is substantially related to that interest.” Thus government must demonstrate why it is important that they preclude gay couples from marrying. At this moment in history, given the fast pace of acceptance for gays in our society, this would be quite a difficult standard to meet, especially if we accept the growing evidence that homosexuality is an immutable characteristic.

I do have one concern: if there is a general right to marry, and if that right must include gays, could we not end up on a slippery slope where currently marginalized relationships, including some many consider perverse, also be tolerated if a right to marry exists. If homosexuality is an immutable characteristic, does it follow that being bisexual is as well. What if a bisexual wanted to marry both a male and a female; what justification could we offer that would not appear inconsistent with the arguments in favor of gay marriage. If marriage is no longer defined as “one man, marrying one woman,” are we now allowed to draw the line at “one person, marrying one person?”
I want to now turn to the question of whether the Republican Party should support gay marriage and the “right to marry;” frankly if they want former members like me to rejoin the Party I strongly suggest they do. In the past year several leading Republicans have expressed support for gay rights, including the right to marry, pointing correctly to the institution of marriage as something that promotes stability and fidelity. The institution of marriage has been in decline, and as a society we should be supportive of two people that choose to spend their lives together as a couple, especially if children are to be part of the equation. Conservatives believe in marriage, they see the importance of marriage, and it follows that they should expand the definition of marriage to include those making that commitment, regardless of their sexual orientation.

Gay marriage will soon be legal in all 50 states; there is no denying that is where the social winds are blowing. The Republican Party can continue to fight windmills, or they can join the real world, use the media to “prime the public” to their arguments in support of gay marriage, and slowly move towards the political center, that place most of us call “home.”


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