I am strongly in favor of same sex marriage and I think the arguments against it are all ridiculous. And I’ll bet that one day those who oppose it will be viewed the same way that those who were in favor of segregation are now considered.
But I don’t think the Supreme Court is going to legislate gay marriage from the bench. They seemed to be looking for a technicality to dismiss the case, noting that the party fighting gay marriage might not even have standing to properly be in court.
But even beyond that, I think the legal arguments will fail. The crux of the argument in favor of gay marriage is that it violates the 14th amendment which states in part:
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.
The problem is, in my opinion, that it’s not illegal under Federal law or in most states for that matter (fortunately not Illinois) to discriminate based on sexual orientation. In other words, if your employer in Texas finds out that you are gay and they fire you for it, there is nothing you can do about it. It’s the same way you can legally be fired for being obese or smelly or dressing odd or anything else that your employer doesn’t like which isn’t protected under the law.
So you can’t get fired because of your race, religion, gender, etc., but being discriminated against because of sexual orientation is completely legal. I think it’s totally wrong of course, but it is legal.
If I were trying to advocate for gay marriage, I’d first make a push to make sexual orientation discrimination against Federal law. Once that happens then we will have a much better argument under the 14th amendment.
I’ll admit that making constitutional law arguments is not my forte as I’m usually dealing with traffic tickets, job injuries, divorce and other stuff that consumers face many times a day. However to me the argument under the 14th amendment seems rather weak. I’d love to be wrong and hope that I’m wrong, but I doubt it.
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