Top Of My Head

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The Constitution and Gay Marriage

I don’t understand how anyone can claim that gay marriage is against the Constitution.  I really do not understand.  The 14th Amendment clearly states: “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.” (emphasis mine)

Whether you like gay people or not.  Whether you agree with gay marriage or not.  The 14th Amendment clearly states that we are to all be treated equally.  The ability to marry in this country isn’t a right, it is a privilege.  Being able to file taxes together, make medical decisions for each other, inherit from each other and make legal decisions for each other is a privilege.  If all couples are not treated equally under the law, then there shouldn’t be legal marriages.  Period.

What makes my brother, Brian’s, marriage to Tara better than my marriage to Cheryl?  Why should they be allowed to file taxes together?  Or, inherit from each other?

Case in point – and something I’ve discussed with my brother – if one of my siblings proceeds our parents in death (God forbid), their heirs (i.e., wife and children) inherit a third of my parents’ estate.  However; if I proceed my parents in death (again, God forbid), Cheryl gets nothing.  Because the state refuses to acknowledge our relationship legally and morally, Cheryl is not considered an heir of my parents.

Is that fair?  Is it just?  Is it right?

No, no and no.

Do my parents consider Cheryl less of a daughter-in-law than Robyn and Tara?

Again, no.

But, legally, there’s nothing to protect her.  Granted, my parents could make a provision in their will, my brothers could split my parents’ estate with her or whatever.  That really is beside the point.  They shouldn’t have to do anything.  She should be my legal heir via a marriage license – just as Robyn and Tara are Scott and Brian’s legal heirs.

Anything less is unconstitutional.

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1 Comment

  1. Fascinating little bon mot for you: marriage, according to approximately 15 Supreme Court decisions spanning over 100 years, is a right. Another thing to consider is that the privileges and immunities clause cannot possibly mean exactly what it says or it would be unconstitutional for a state to deprive a felon of the privilege of voting (yes, privilege; voting is not a constitutional right). However, even if the clause meant what you believe it to mean, it’s a moot point under the little bit of text you didn’t highlight: the amendment clearly states that the government may deprive someone of life, liberty (i.e. privileges), and property with due process of law. So as long as due process is followed, the Fourteenth Amendment permits a state to deprive you of anything, even your life. Or, for your purposes, your marriage to Cheryl. It’s painfully ironic that with such a clear statement in the Constitution of the fact that the majority MAY enact laws which deprive gays of a certain liberty (again, so long as due process is followed), it is the majority and not the gay marriage advocates who will be forced to amend the Constitution to make it reflect their views. One more tragic effect of the current judicial climate.

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