Morality vs Equal Protection under the law

Oh dear. William McGurn had a textbook case of shortsightedness today in the WSJ in his entry on the Opinion page entitled" "Gay Marriage and the California Courts".

I shan't go into great detail about the article - it is pretty vapid stuff about how the majority is welcome to impose its will and usurp the courts' protection of the minority.

I will, however, pick out one interesting quote:

..gay-rights activists see no moral difference between two men who want to get married and the traditional male-female couple making their walk to the altar."

Ummm, given that marriage is a civil ceremony in all 50 states (not a moral ceremony in the view of the state) - one does have to wonder where equal protection under the law stands. Marriage is a state issue, by and large. States can define when a couple can get married (i.e. restrictions on bigamy, age, mental condition, etc). But marriage itself is the union of two willing participants (most of the time) that requires the blessing of the state through a license. That means it is a contract. The Federal Government ensures that the rough parameters of marriage in the states are (for males and females) rather fair. To wit - no marriage between people of differing races can be denied in our country despite what the majority of the population, in any given state, might inherently believe, be it moral or otherwise.

Ergo, morality and marriage might be very fervently tied together by many people but "morality" is not allowed to prevent marriage in obvious cases of discrimination. I mean did anyone actually protest that Tiger Woods (mixed racial composition) married a white woman? 100 years ago, in many states of this great Union, mixed marriage would not be allowed. But in the 1950s and 1960s, the courts actually started to impose the real meaning of the Constitution where bias (read: morality) is not allowed under the Constitution with regard to mixed race marriages.

So I just finished reading the article and was incensed.

I don't want to get married, period. Bubba and I have been together for 7 years and our interest in marriage has nothing to do with commitment or existing Federal Law - we just don't talk about marriage as part of our path. I don't think it is a good idea for many gays to get married - 50%+ of straights cannot seem to get it right and we should learn from their mistakes.

But I want to ensure that people who want to make that choice to allow government intrusion into their lives are given every chance - hell, it might work for them and think of all the benefits. Marriage between two willing people is standard in our country - and the recent paradigm is that so long as one person has a vagina and one person has a penis then that is their right (given certain constraints). Thus, is morality now reduced to an innie-outie paradigm? Two penises, no marriage for you. Two vaginas, no marriage for you either. We've reduced marriage restrictions to something as silly as what people were born with between their legs (or more specifically, that one must have two X chromosomes and the other must have one X and one Y chromosome). The sex chromosomes are the same as the color of ones skin - it is just some DNA after all.

Opposition to gay marriage - or more specifically, subscribing to arbitrarily imposed rules by the majority - is what is at play. People who don't even believe (much less think about Christ) can get married and this is sanctioned by the state. Thus what role is "morality" actually playing here? A Hindu couple from Asia who has no meaningful interest in Christ or Christian principles has their marriage validated upon entry into this country. Is that "moral"? What rational thought can be given by the majority in this country to support a marriage of two people who the Christians implicitly believe are going to Hell? If we are going to split hairs - why would any Christian support a "pagan" or "non-believer" marriage? Oh I forgot - the penis and vagina matter here - not their "moral" beliefs (note: I picked Hindu arbitrarily).

If we are going to be "moral" (read: Christian) then let's get fucking moral. Make baptism in Christian faith required. How about weekly attendance at Sunday School.

You see how silly this can become if you sit and ponder it.

A moral marriage is just some idiotic construct that is sufficiently plastic to adapt to the times. The reason that Hindu marriages are recognized by the state is that the majority has said that some sinners can get married and others cannot. Completely arbitrary in my opinion. The majority in this country will let a sinning couple doomed to Hell get married and have it recognized if they have a penis/vagina dichotomy. However, a Christian penis/penis couple is forbidden.

Silly games, I know. But that is where gay marriage is now. Silly rules decided by the majority in complete defiance of the Equal Protection Clause. Can any strict constructionist please point to the Constitution and find the statement that only that couple with a one to one ratio of penis and vagina are allowed to get married.

(Crickets chirping loudly).

The courts are in place for this very reason. Silly and arbitrary rules imposed by the majority need to be revised in accordance with the law of the land. If marriage is a contract that some decide is legal and others decide is moral and yet others decide is both - the courts have to step in and clarify.

I agree that California ought to be able, in a free world, to ban gay marriage. However, California is not free, it is beholden to the powers of the Federal Government which derives is authority from the written law, of which the Constitution is a primary guiding force. If marriage is viewed by the Federal Government and the Constitution as a legal contract - then the matter is closed. Federal rights trump states rights every day of the week. Thus the states may refine their rules for marriage in an arbitrary fashion but is must comply with the spirit of the Constitution.

Morality is just a pretty term for bigotry. Ask any black person who is 70 and lived in the south about "Christian morality" and they will probably give you a pretty good case for why the Constitution's Equal Protection Clause is not something to be taken lightly. I just offer these thoughts to suggest that the Federal Government and the courts have a right and respobnsibilty to protect the minority.