How does homosexual marriage become a constitutional “right”?

Greg W. writes:

How do you respond to those who believe marriage is a right? I do not see marriage, gay or straight, as a right in any respect in regards to the Constitution.

LA replies:

Of course marriage is not mentioned in the Constitution. But the 14th Amendment says that no state shall deprive any person of the equal protection of the laws, and that no state shall deprive any person of life, liberty or property without due process of law. This language has been (wrongly) interpreted in the widest sense to mean that any state law that may result in almost any kind of inequality or discrimination or deprivation of freedom is in violation of the 14th Amendment and therefore is overturned.

For example, abortion is not mentioned in the Constitution. But the Supreme Court in Planned Parenthood v. Casey (1992) said:

[T]he most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.

Therefore, the Court continued, laws banning abortion violate “liberty” under the 14th Amendment and are null and void.

Similarly, homosexual conduct is not mentioned in the Constitution. But the Supreme Court in Lawrence v. Texas (2003) said that, based in part on “liberty” as enunciated in the 14th Amendment, there is a zone of privacy, namely of private sexual conduct, in which the state cannot interfere, and therefore all laws criminalizing homosexual conduct violate the Constitution and are null and void.

The same with marriage. All that’s needed to open the way to homosexual marriage in the U.S. is for the Supreme Court to declare that laws that limit marriage to one man and one woman deny homosexual couples the equal protection of the laws and deny them liberty, and therefore are null and void. This would be an insane distortion of the meaning of the 14th Amendment as intended by its framers and the public when the 14th Amendment was written and ratified, but that hasn’t stopped the Supreme Court before.

Posted by Lawrence Auster at June 08, 2011 01:59 PM | Send