Talking Fairness

Loving v. Virginia is a famous court case in the late 1960s that made all state marriage laws unconstitutional that restricted marriage based on racial difference between the two marrying parties. However, the Loving ruling was misguided. The majority opinion, given by Chief Justice Earl Warren, made the conclusion that marriage was, “fundamental to our very existence and survival,” when in fact this is not causal. If Americans stopped marrying one another (not marrying any, regardless of nationality), the basic status of being alive or  existing for Americans (or for that matter man, humans, as a whole) would not be affected. The actual requirement for existence, sexual reproduction, is not so connected to marriage that, whereas marriage ceased to exist, so it would follow.

The Warren Court’s ruling also established (or reaffirmed) another principle, which some may wish to argue depends on the above clause;”fundamental to our very existence and survival.” This principle is the idea that, “[m]arriage is one of the ‘basic civil rights of man.’ ” And this, I concur. Marriage does seem fundamental in the ability of people to express their thoughts and feelings, which would be covered by the first amendment.

By that ruling, seemingly same-sex marital bans are not only an argument relevant to the 14th amendment, but added are relevant to the first amendment, as well.

Some have applied the right of marriage to the ninth amendment, which is more established legally, than a 1st amendment argument. And since it means the same thing regarding the 14th amendment, this is fine.*

But the misguidance in the majority opinion stating, “fundamental to our very existence and survival“ allowed the future ruling of the Minnesota Supreme Court in Baker V. Nelson, and such a ruling is the binding precedent on same-sex marriage bans regarding the U.S. Constitution, however wrong.

Justice Peterson of Minnesota opines: The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry. There is no irrational or invidious discrimination.

And if a ban on same-sex marriage is not motivated by irrational or invidious discrimination, there is only one other motive for such a ban. The protection of the thing, as by law established, that is “fundamental to our very existence and survival“; marriage. The petitioners tried to say that under that notion of marriage that only a couple willing or able to procreate should be granted a marriage license. Not an entirely unruly argument, however, it is weak and vulnerable. The response of the justices was that this was imperfect; basically that it would violate the fourth amendment as evidenced in Griswold v. Connecticut. This can only be seen as the justices using the correct interpretation, the one of which should obligate them to accept same-sex marriage, of the law to dismiss the notion that procreation is fundamental to tradition marriage. Albeit the justices’ logic is inconsistent (like I said the petitioners’ argument was fair enough), my initial criticism of the legally establish notion of marriage as being connected to our existence seems to be more sound. *

In 1996, the Rehnquist Court, albeit Rehnquist dissented, ruled on Romer v. Evans, opening the door for argument in support of same-sex marriage beyond Loving v. Virginia. Justice Kennedy gave the majority opinion, which coincidentally could merely be pasted into the argument against the current state definition of marriage because it fits so perfectly. Justice Kennedy opined,

In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2’s prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.

This opinion made unconstitutional Proposition 2, a Colorado law that forbid anti-discrimination laws based on sexual orientation. Particularly interesting in regards to the argument in support of same-sex marriage is the last clause, “Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.” The idea portrayed by the word ’safeguards’ seems very relevant to the idea of marriage. There are numerous benefits, as well as a few safeguards, given to an individual when he or she goes into a marriage, which because of the marital oaths that are required a homosexual person cannot do legitimately. Such an argument appears weaker than other arguments because homosexuals are still able, however illegitimately, to marry the opposite sex. And, perhaps unfortunately, the only route used to justify this argument affects polygamist marriages, as well. The justification for restrictions seemingly has to be involved to a degree of state’s interest. And while polygamy gets into a complicated bout over taxes, and social wellfare programs, same-sex marriages in no reasonable manner harms the interest of any state, and therefore excluding homosexuals from a marriage, other than those null and void is unconstitutionally irrationally discrimiatory.

*Stanza was added April 25, 2009