If I wanted to marry myself and applied for a marriage license, chances are that every license-issuing magistrate on the planet would politely but firmly instruct me to take a hike. But why? More importantly, why should my request be turned down? What could possibly be wrong with entering into the sacred bonds of matrimony with the person I love, honor, and cherish above all others? How is it that, merely on account of my spouse selection, I am being denied my civil right to shed the societal stigma of singlehood and enjoy a tax break like everyone else?
Well, for starters, if only one person is involved, it ain’t marriage. Simple as that. Says who? Why, tradition, of course. Historically speaking, the concept of marriage has never been known to extend to unions with oneself.
So there I go, and there I have it. Bummer.
Gay marriage proponents argue that the Equal Protection Clause of the Fourteenth Amendment guarantees the right to same-sex marriage, and that resorting to the ballot box in this matter amounts to an exercise in futility, since–short of the passing of an constitutional amendment–our fundamental rights are not accountable to the democratic process. The Equal Protection Clause, by definition, trumps the outcome of any popular vote.
Makes sense. After all, the whole raison d’être of the Bill of Rights and its subsequent additions is to protect minorities from what James Madison aptly termed the “tyranny of the majority,” precisely so that no one can be stripped of a basic right by popular consensus or legislative fiat. (In a pure and unfettered democracy, no Bill of Rights–indeed no Constitution–would be necessary, save to ordain the majority’s right to disenfranchise minorities in all areas.)
Furthermore, the phrase “nor deny any person within its jurisdiction the equal protection of the laws” clearly states that all laws must be equally applied to everybody. So if one segment of society is allowed to marry whomever they please, the same right must be accorded all others.
Having established that persons of legal age cannot be denied the right to marry their consenting and likewise-of-legal-age partners of choice, the whole issue of who has a right to marry whom under Equal Protection boils down to what the word “marry” means.
Several possible definitions are in play:
One camp argues that to “marry” denotes the union of exactly one man and one woman (in which case gays and lesbians have no equal protection claim); another camp defines it as the union of exactly two consenting adults (in which case gays and lesbians do have an equal protection claim); and a third camp puts forth the definition of marriage as a union between two or more consenting adults (in which case virtually every form of non-traditional union has an equal protection claim).
So how to go about choosing the correct definition?
The intuitive method for solving the mystery is simply to ask what the term “marriage” has meant through the ages, i.e., to search for the so-called traditional definition of marriage. For better or worse, this method will yield as our answer the union of exactly one man and at least one woman, whereby the permissible number of wives sometimes varied by culture and religion. Perhaps in certain societies some women were allowed to command several husbands. In any event, it is safe to surmise that, for the better part of recorded history, to “marry” involved a mixing of the sexes, or else the term didn’t apply; just as pointing at a mailbox and calling it a birdhouse doesn’t make it a birdhouse.
If we boarded our trusty time machine (yes, hybrid models will be available soon) and paid a visit to every society that ever existed all the way back to the Sumerians for the purpose of conducting a pan-historic poll on whether a man could “marry” another man, whether a woman could “marry” another woman, whether individuals could “marry” themselves, or, for that matter, whether monkeys were fish, the uniform response to all these questions would be a resounding “huh?”
Of course, Philadelphia in the sweltering summer of 1787 would be among the stops on our journey, and we’d present our questionnaire to the eminent assembly gathered at Independence Hall. While we’re at it, we might as well toss in the query of whether women should have the right to vote. Once again, we’d receive a collective “huh?” on all counts. (By contrast, if we inquired whether slavery should be phased out or continued, the response would be far from uniform. Not much collective concurrence on that one.)
Or let’s do the screwdriver test (think booze, not home improvement):
Drop into your neighborhood bar and order a screwdriver but with extra OJ in lieu of the vodka. Now the bartender will understandably shoot us a puzzled look, since we effectively ordered a glass of orange juice, not something that answers to the traditional definition of “screwdriver.” Obviously, it is the combining of the two primary ingredients which makes it that. Since there exists no constitutional proscription against broadening the traditional definition of a highball, we might as well decree that henceforth the term “screwdriver,” in addition to its original meaning, shall also mean (a) plain vodka, and (b) plain OJ. Should such definitional expansion confound or offend the orthodox majority of mixologists, tough. Screwdrive them.
By the same token, we could expand the traditional definition of marriage to include autosexual marriage, homosexual marriage between two people, bisexual marriage (i.e., George getting married to Jeffrey and Jennifer), and all manner of multiple marriages, co-ed as well as unisex. After all, traditional and desirable are two entirely different pairs of wingtips. Just because something lines up with long-standing historic precedent doesn’t mean it’s right. Even though women were traditionally kept out of the voting booth, every sane contemporary of ours will concur that we’ve traded a flawed tradition for something much better, fairer, and morally superior; indeed, that we’ve corrected a historical wrong.
The difficulty, it seems to me, arises when–citing the Equal Protection Clause–we campaign for expanding and improving the traditional definition of marriage so as to include same-sex couples but omit to promote all other conceivable semantic enrichments of the term. The oft-deployed argument in favor of gay marriage that “it would still be between two people” goes sprawling right out of the box in the sense that the word “still,” by its very definition, connotes traditional practice (i.e., “how it has always been”) when it is, in fact, tradition that one is attempting to throw under the bus by advocating gay marriage in the first place.
As stated above, kicking tradition to the curb isn’t necessarily a bad thing, and it may indeed be eminently desirable regarding the matter at hand, namely the redefinition of marriage as a union between two consenting adults instead of clinging to the hidebound and cobwebby one-man-and-one-woman requirement.
However, the selective defenestration of the traditional gender requirement (male and female) in tandem with the preservation of the no less traditional number “two” (as in two people) seems quite arbitrary and at serious loggerheads with the notion of equal protection, as neither I (who would like to exchange rings with myself) nor my buddy George (who wants to wed Jeffrey and Jennifer) were accorded equality as a result of the marriage-redefinition process. George and I were squarely left out. What’s equal about that?
If, on the other hand, the word “marriage” had not been subjected to any kind of semantic broadening at all, then the types of unions George and I, respectively, desire wouldn’t fall under the traditionally narrow definition of the term. Hence we’d have no Equal Protection claim regarding “marriage,” since the romantic alliances we have in mind are not that.
Unable to defend the obvious lopsidedness of ditching the traditional male-female component of marriage while retaining the traditional spouse count, some gay marriage advocates may be willing to sign on to the redefinition of marriage as the consensual union of two or more partners. Of course, such unidirectional flexibility of the PTNSPM (permissible total number of spouses per marriage) towards infinity but not in the opposite direction towards zero (which would entail the legitimacy of autosexual marriage) must likewise be justified on Equal Protection grounds, and this presents somewhat of a dilemma:
Merely insisting that a union with oneself is not covered by the term “marriage” effectively returns us to square one of this discussion. On the other hand, the matrimonial carte blanche following the admission of both autosexual as well as of all manner of multiple unions into the marriage tent–this, after all, would be the logical conclusion under Equal Protection, once tinkering with the traditional definition has begun–would turn the sacred bonds of marriage into a farce. One might as well abolish marriage altogether and give everybody a tax break.
In his concurring opinion in the case of Texas v. Johnson, decided in 1989, Justice Kennedy wrote the following:
The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.
It is indeed. Just in case it didn’t come through in the penumbras and emanations of this essay, its author is all in favor of gay marriage, and, in the spirit of Justice Kennedy’s eloquent words, I (the author) hereby pause to express distaste for the result which my personal reading of the Constitution compels.
Based on the reasoning presented above, however, I am unable to regard the gay marriage controversy as a Fourteenth Amendment and hence as a Civil Rights issue. The comparison of upholding the traditional definition of marriage to racial segregation fails to compute on several fronts. For instance, although reasonable people may differ on what exactly the word “marry” connotes in terms of number and sex(es) of the candidates, no reasonable person could possibly define riding in various areas of the bus as meaning different things depending on who’s doing the riding (as in “riding in the front of the bus is allowed, but when a “colored” person does it, it’s called trespassing, not riding, and therefore it’s not allowed; in the back of the bus, the reverse logic applies”).
Moreover, the U.S. Supreme Court via its case history regarding discrimination has effectively declared classification based on race to be an entirely different kettle of fish than classifications based on anything else, including sexual orientation. So assuming that banning gay marriage indeed constitutes a form of discrimination–whether it does or does not, as we have seen, hinges on one’s definition of “marriage”–, any state enacting such ban merely has to demonstrate that their motive for discriminating was “rational.” For instance, to protect the community’s “sense of morality” (perfectly legitimate under any state’s police powers) would satisfy such rationality test, and the law permitting the discrimination will most likely be upheld by the Court.
State laws discriminating on the basis of race, however, are held to a much higher standard. It will not suffice for such laws to be “rational”; they must serve a so-called “compelling” state interest. And an interest in protecting a community’s sense of morality, while rational, is not deemed “compelling” by a long shot. In practice, this means that laws discriminating on the basis of race will almost always be overturned (with the possible exception of affirmative action cases).
A suspect class is one saddled with such disabilities or subjected to a history of purposeful, unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.
According to the Supreme Court, only race falls into this “suspect class” definition. Hence, in the case of Loving v. Virginia, decided in 1967, Virginia’s anti-miscegenation law (prohibiting interracial marriage) was struck down. The discrimination was race-based, served no “compelling” state interest, and was therefore toast.
While one may agree or disagree with such class system–“suspect” for race, “semi-suspect” for gender, and “non-suspect” for everything else, including age, wealth, sexual orientation, or dietary preferences–, the fact is that likening a ban on gay marriage to gays and lesbians being relegated to the “back of the bus” flies in the face of longstanding Supreme Court jurisprudence; indeed, one would have to conclude that the U.S. Supreme Court has been stacked with a majority of irrational homophobes for decades.
Although I concur with conservatives (as well as with the Supreme Court and, presumably, with most African-Americans, conservative or otherwise) in that I do not believe the widespread reluctance to revise the traditional definition of marriage resembles racial discrimination on any level, I’d like to conclude my remarks by putting to the torch two of the most popular arguments regarding homosexuality in general, and gay marriage in particular, espoused (pardon the pun) by our friends from the conservative side of the tracks:
First, they tend to claim that our sexual orientation is what we do, not who we are; hence it didn’t compare to ethnicity. As a devout heterosexual, I respectfully disagree: I certainly am straight, even on my celibate days when I’m not doing anything that couldn’t be shown on network TV. I am straight even when brushing my teeth. And no, I did not choose to be straight like picking out a tie in a store. Many conservative so-called thinkers seem to forget that they would have to apply their own rationale on themselves and admit that, following their own logic, at some point in their early years they made a choice to have the hots for Marilyn instead of the Marlboro Man and that they could, therefore, choose to turn gay anytime (after all, it’s just a “behavior”). I have yet to hear such admission. What ever happened to “fair and balanced”?
Speaking of which, Bill O’Reilly–whom I like, although he’s hopelessly off the reservation on this one–delights in proclaiming that “Your sexuality is what you DO–American is who you ARE!” Sorry, Bill, but that’s just dopey, to borrow your favorite word, and I happen to be living proof that you’ve got it exactly backwards: I was born a European and subsequently became an American. In essence, all it took to change the latter was my physical presence in this country plus doing some paperwork. Yet since my grammar school days, my one-track predilection for the opposite sex hasn’t budged by a gnat’s eyelash. Ergo, my sexual orientation is a far more integral aspect of who I am than is my nationality. No way I could switch teams simply by filling out a few forms, paying a fee, and swearing an oath (which is exactly what I did).
Second, right-wingers (I exclude Mr. O’Reilly from this category) tend to defend traditional marriage by highlighting procreation and the raising of children as its paramount purpose. Strangely, though, I never hear them proposing the annulment of childless heterosexual marriages after a reasonable grace period. After all, if a couple either can’t or doesn’t want to have kids, then what’s the point of staying married? So the child-rearing defense of traditional marriage doesn’t quite wash. In fact, if Jenny and Rachel are willing to adopt while John and Mary opt to remain bratless, then this particular argument against gay marriage not only doesn’t wash but royally shoots itself in the foot.
In sum, given that the Constitution is silent on marriage, the issue of its definition, in my opinion, must be resolved through the ballot box in the various states and, ultimately, by way of a constitutional amendment redefining marriage as a union between two consenting adults. For if the right to gay marriage were already enshrined in the Constitution, then so would be my right to marry myself.