On Gayness and Marriage

The 14th amendment was enacted in 1868. It was written into the constitution because there were doubts about whether or not congress could legitimately enact the Civil Rights Act of 1866. The Civil Rights Act of 1866 read "citizens of every race and color ... [have] full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens." That is, the spirit of the 1866 Act and the 1868 Amendment, if you were to unfurl its logic, was meant to protect classes of birth - like race, national origin, sex or religion – where modern American jurisprudence would apply “strict scrutiny.” The 14th amendment was never meant to apply to classes of choice. It was never meant to apply to homosexuality. That is clear.

Let me reiterate the point and sharpen it. Homosexuality is a class of choice. It is not a class of birth – like race, national origin, sex or religion. Yes, bores will argue that “they” are “born that way” – whatever that means. And while I will conceded that may well be true for some; it is not true for all. But whatever the case, we must maintain the concept of free will (choice) – for if we do not uphold that foundational concept, then all law – moral or state – simply crumbles. I mean, how could anyone ever be held responsible if they never had a choice? “I had no choice but to kill those three people.” Look, I don’t particularly believe in free will – but for the sake of order and deterrence, it is clear that we must maintain the willing suspension of disbelief when it comes to free will. So the equal protection clause only applies to classes of birth – where one has no choice. You can’t help being born black or female, etc. It does not apply to classes of choice.

Yes, you can argue that religion is a class of choice and that the equal protection clause clearly applies to it. But the heart of the difference is that by making a religious choice and then marrying one is not demanding additional privileges whilst by making a sexual-orientation choice and then marrying one is indeed demanding special privileges – for example, spousal benefits.

I mean, think about it. There is a slippery slope here – not to be glib. But if we start opening up the definition of marriage and extending the equal protection clause to anybody that’s made a choice, then what would stop, for example, an entire community from wedding and taking mutual advantages of marital exemptions for estate tax purposes? I mean, where is the line drawn? We should draw it traditionally – with one man, one woman – just as 7 million Californians did.

Last but not least, the key line at issue in the 14th Amendment is that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Well, not to overstate the obvious, but it must be pointed out that homosexuals never had the right to get married in the first place, therefore there is no “privilege” being “abridged” by prop 8 – since homosexuals didn't have the right to marriage in the first place. That is, you first must have had the right to a privilege before there is even the potential of that privilege being unconstitutionally “abridged.”

I won’t bore you with the additional facts that as a society we often discriminate on a whole host of issues based upon what seems reasonable. For example, one can’t vote till they’re 18, etc. Again, it’s largely how we want to organize our society. So it’s not a religious thing, for me, it’s an engineering thing. What kind of society do we want to engineer? And where/what do we prune?

So the issues of gay marriage goes right to the heart of how we fundamentally structure society - what we incent, disincent, suppress, and subsidize. We should cut today what we want tomorrow. It’s the law of gardening. I mean, history proves tha...t civilization is best served by anchoring into absolutes – a handful of absolutes (call them principles if you like) that promote stability and a smooth “baton-passing,” as it were, from one generation to the next: we often call such intergenerational structure “culture.” And the traditional family unit is the keystone to any multi-generational tasks. So I say, let’s celebrate the traditional family unit, keep it sharp and defined – and esteemed, and not castrate it into some ineffectual fog of relativism. Who would argue after all that, as a species, this 21st century presents us with many challenges! And the type of challenges best met by a parent hoping and working toward a better life for their children.

On the flip side, you can chart how history has often morphed when “state-leisure” relaxes in the other direction – yes, art always erupts, and often a flourishing of drama and genius – but always hanging over, light on those heels, drags great monstrosities and ever-lowbrow-ing decline – and the deliquescence is inevitably the rot of the power of a people. Not my opinion. Just historical pattern. So it depends upon what you want - in what garden you want to live. But it’s always with such a seeming innocuous premise as “everyone-should-have-the-right-to” that the inexorable will of history arcs its way… further into decadence.