Constitutional Argument

Everyone is very upset about the ban on gay marriage that was passed by a popular vote in North Carolina on Tuesday. I certainly disagree with the Amendment, but it doesn't raise my ire that much. In more states than not Same-sex marriage is banned by the state's constitution. I live in Ohio and we've had one on the books for nearly 8 years. In many states that don't have a constitutional ban, it is still illegal*.

I am not so maddened by the result in North Carolina or anywhere else, because I know that it is coming whether it is popular or not. The overturning of Prop 8 in California will undoubtedly bring this issue to the Supreme Court. The Court would have to break precedent to uphold these bans.

Let's talk about the 14th Amendment. This is probably the most important amendment outside of the Bill of Rights. The immediate effect of this amendment was to stop the Southern States from doing anything to deny citizenship or rights to freed-slaves. It basically takes the Bill of Rights, particularly the Due-process Clause and applies it to the states. A citizen of the United States cannot be denied citizenship to the state in which he or she resides. A state has to give due process and equal protection under the law to all United State's citizens who reside there.

One can also look at the 14th Amendment as the final shot of the Civil War. The Union had many aims in it's fight, but ultimately what the war proved was what the Federal Government says goes. States can't nullify laws. States can't ignore court orders. If the Feds tell a state to do something, it had better do it or Sherman will march to the sea again on its ass.

The Equal Protection Clause is the most important part of the 14th Amendment for us too look at when considering bans on Gay Marriage. Here's Section One, which is really the only section that still holds any bearing on Today**:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 

Equal protection (quite obviously) means that laws cannot be applied to one group and not another. Banning Gay Marriage certainly does that and the Courts won't allow it stand for much longer. Anyone who is a proponent of these bans will have to find an argument that proves these bans not be in violation of the Equal Protection Clause and there isn't a reasonable one.

One can always make an argument against an Equal Protection claim. In this case it would be, "The ban applies to everyone. No one is allowed to marry anyone else of the same sex." That is effectively saying, "A law banning abortion applies to everyone, because men can't get abortions either.***" Perhaps in a vacuum those arguments would hold merit. Fortunately, the Court doesn't live in a vacuum and they can interpret and understand these laws for their actual intent and application, which is to treat homosexuals unequally.

The case that is most looked at on this issue is the 2003 decision in the case of Lawrence v. Texas. This ruled a ban on Sodomy in Texas, and therefore every other state with a similar law, unconstitutional. The Majority Opinion written by Justice Kennedy, who will likely be the swing vote if Same-sex marriage gets to the court soon, states that the 14th Amendment's Due Process clause protects the right of consenting adults to engage in whatever kind of sex they want to in private.

Lawrence v. Texas wasn't purely an Equal Protection case as the Same-sex marriage one will be. The decision was based on Due Process, because the men who brought the case had been arrested. However, the decision could as easily have been on the Equal Protection Clause as it was part of the oral argument for Lawrence. It basically would've been the same decision, if Kennedy had gone with the Equal Protection Clause.

So, I suspect when the day comes that the Supreme makes a decision about this, it'll be a 5-4 decision to overturn the bans on Gay marriage. Going back on Equal Protection precedent would catastrophic for all the advances this country has seen in Civil Rights. The Courts make up could change in the meantime, but as of now or if President Obama gets a second term****, I feel pretty confident same-sex couples will be marrying in this country before too terribly long.

Thanks for reading and please comment
-Michael


*It was illegal in North Carolina as well, so the amendment was just a way to stick it to a group of people. 
**Section Two basically overturns the 3/5ths compromise, which still counts today, but it isn't the subject of any controversy.
***To be clear, Equal Protection isn't the first route you go when making a pro-choice constitutional argument. It works, but Due Process and the Implied Right of Privacy are better choices.
*I feel confident that he will.