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Wednesday’s column by Cal Thomas in the Albuquerque Journal suggests that gay marriage would best be determined on a state-by-state basis. Thomas offers a suspect argument opposing federal recognition of gay marriage by stating that the U.S. Constitution “does not guarantee the right to marry.”
At the time, Thomas invokes his religious beliefs, suggesting that gay marriage discards the “rules for living and social order” set down in the Bible. I would remind Thomas that the Constitution states religious doctrine has no place in a debate about the principles of equal protection and would suggest Thomas is wrong in his legal assessment regarding the role of the courts in such a constitutional determination.
True, the Constitution does not guarantee the right to marry. Nor does it guarantee the right to attend desegregated schools or to sit in the front of a bus or be served at a lunch counter with people of a different race.
The Constitution does not define a person’s freedom to make reproductive decisions or to have both sexes share equally in distribution of public sports monies. Rather, the Constitution was deliberately written in a manner that guarantees all Americans to equal protection and due process under the law, as applied to many different situations where fundamental rights are at risk.
In the case of Brown vs. the Board of Education, the Supreme Court determined “separate but equal” schools violated the rights of African American children. Were the country to have waited for each state of the deep South to determine they were ready for make such a change, such inequity would have lasted many more decades.
If each state had been allowed to decide whether women could make their own contraceptive and reproductive choices, I would guess women in some states would still not have access to such services and products.
Marriage is an important right, carrying with it hundreds of special legal protections and privileges, allowing spouses to file joint taxes, adopt children jointly, receive death and pension benefits and have non-citizen spouses receive resident status. The core principle of the 14th Amendment makes clear that denial of important rights to a discernible group, without a compelling state interest, is discriminatory, harmful and illegal.
Courts not only can make such determinations, they must do so in order to ensure that the country doesn’t have a patchwork of different laws, forcing citizens to make impossible decisions on where they must live and what they can do.
If a married gay couple in Iowa, New York or Vermont must move to Texas for work, school or military service, they should not have to give up their rights and privileges, waiting until Texas is ready to legalize gay marriage. Married couples of different racial backgrounds were once forced to make similar decisions (based on whether a state recognized such unions) and few people today would criticize the courts for tossing such laws.
In sum, if we are to be a country where every citizen is guaranteed the inalienable rights to life, liberty and the pursuit of happiness, it is the duty of the courts to rule that gay marriage must be recognized across the land.
