In an earlier post, I discussed the issue of identity formation as it relates to the discussion of homosexuality. Essentially, I argue that because we have come to consider homosexuality an identity as opposed to something a person does or feels, we have created a category of personhood that naturally calls to mind the need for a different form of legal recognition and provisions. I believe that changing the nature of marriage in the United States in order to accommodate the sexual preferences of everyone will shift our focus away from children, which I believe is the historic purpose of government involvement in marriage. However, I recognize that my opinion is not the only one, and I am therefore alarmed when the weighty decision about the nature and purpose of marriage is dictated by a court as opposed to the voice of the people. In the case of the 9th Circuit Court of Appeals hearing the arguments for the constitutionality of Proposition 8, this concept of identity and a convolution of words has also caused the federal judges to make a critical error:
Quoted from Forbes magazine: "The 9th Circuit Court of Appeals has ruled that the California ban on gay marriage violates the equal protection clause of the 14th Amendment to the United States Constitution.
The equal protection clause states that no state shall deny to any person within its jurisdiction the equal protection under the law. Accordingly, the court ruled that denying gay and lesbian couples the right to marry denied them the same rights provided to heterosexual couples." (italics added)
The Court's official statement: “Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted." (italics added - and will be explained below)
Their logic is sound. Different classes of people shouldn't be treated differently by the law. But are they? Are people with same sex attraction feeling discriminated against because they are being treated differently, or because they are being treated the same? While we certainly acknowledge the feelings of others, one’s feelings do not constitute a class that requires special treatment. Can individuals claim "LGBTIQ" as an identity or class of people they belong to? Of course - as much as vegetarians, alcoholics, lefties or nudists can. They also have to pay taxes, drive on the right side of the road, and put on their pants in the morning like everyone else. Without denying the fact that many people experience these real, undeniably strong feelings and form fulfilling relationships as a result, we have a right to vote on whether or not to make special legal provisions for them – especially the right to define marriage, a social contract. The problem is that those who see homosexuality as an identity are more likely to assume that they are being treated unfairly by a law that treats everyone equally.
This assumption has led the justices of the 9th Court of Appeals to make a logical fallacy in their argument against Proposition 8. They reference the 14th amendment to claim equal rights protection on “persons” and then automatically skip to declaring the right of “couples” to be treated equally. At first glance, this issue seems like discrimination against individuals – especially when the proposition is referred to as a "ban against gay marriage" - but is it really a ban on gay people marrying, or a ban on the type of marriage they want to exist? The meanings are lumped together in this pejorative phrase, but the distinction is critical.
A relationship does not have the same rights as an individual. We have encountered the same controversy in regards to corporate personhood - that is, while a corporation may be a group of individuals, a corporation does not have the same rights as an individual. Aren’t individuals with same sex attraction just as welcome to get married as anyone else – Muslim, blond, quadriplegic? Yes. In this sense, marriage is certainly an individual right. But can they dictate the requirements for that social contract? No; no more than can two cousins in love, or a Muslim in the U.S. who wants to take a second wife. Under our current laws, even Mary the mother of Jesus would probably be too young to get married to Joseph. But we can vote to change the contract, just like everyone else can.
This debate is not about whether or not gay people have the right to get married, it's about what the definition of marriage is. That should be obvious to everyone by now. Assuming that an individual is of age and mental capacity, everyone in America has the right to get married - everyone, equally. We also all have the right to vote to change the nature of the marriage contract - also an equal right. The 14th Amendment supports that and so do I. While marriage is clearly a more attractive option for some people than others (for a variety of cultural, psychological, social, biological, and financial reasons), it is the same option. No one is being treated specially here.
Individuals have the freedom to live as they choose, and we have the moral responsibility to respect each other regardless of our differences. Whether a relationship should be sanctioned as a marriage, though, depends on what you believe the purpose of marriage should be about - legitimizing relationships, rearing children, racial purity, gender relations, human population control - your priorities might be different than mine. But regardless of one's opinions about whether or not such relationships are inherently moral, we should not mistakenly use the Constitutional rights afforded individuals as a universal legal protection for all types of relationships. No one would agree with all the implications of that.
Some readers hopefully now realize a key lapse in understanding on both sides. We agree that getting married is a right, but who you marry is a social contract with lots of important implications for the future of our society, and therefore a contract in which society has some say. The courts do not have the right to redefine the contract of marriage without the consent of the governed. One’s personal feelings and preferences do not provide special rights or the right to force one’s opinions on others any more than my religious feelings and beliefs allow me to do likewise. It should be sufficient for us in a democratic nation to allow such factors to clarify our own priorities and inform our own choices. That is why we vote.
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