Voting on same-sex marriage
If you should ever visit the U.S. Supreme Court, you might notice that scattered quite surreptitiously around the building are turtles. Of course, I do not mean the living, breathing, disease-bearing kind. Rather, carved into the bottoms of lampposts, adorning some of the fixtures and even sold inside the gift shop are small figures bearing their image. If you were to ask one of the court's docents why this is so, he or she would respond quite happily that it is to embody the "slow and deliberate pace of the law." For some, this evokes the imagery of a strong and stable judicial system, designed to withstand an ever-vacillating and charged public opinion. For others, this is a poignant reminder of how long and hard individuals often have to fight to see their rights materialized via court opinions, federal statutes and constitutional rights. The turtle then is quite an appropriate analogy for the current battle raging in this country over the expansion of gay rights — it has been painfully slow, but headed in what I believe is the correct direction.
The dilemma for most Americans who give thought to the issue of gay rights, particularly same-sex marriage, is that it is entangled in a web of deeply-held moral beliefs and legal philosophies. According to a June 2009 poll, less than 50 percent of Americans support same-sex marriage. Breaking these numbers down by state, only six states have more than 50 percent support for same-sex marriage (and just barely at that), as opposed to a majority of states remaining below 40 percent approval — with Alabama at a dismal 25 percent.
But even if these numbers seem obvious, and partially expected, it raises an important constitutional question: in cases where the majority of the state disapproves of an act such as same-sex marriage, should they be allowed to vote into law a prohibition against it? In other words, should we allow the opinion of a majority to take away certain rights of a disfavored minority group? Thus far, 26 states have allowed just this to happen.
Today for instance, the citizens of Maine will be voting on a measure that would take away the right of same-sex marriage in the state, after a law allowing for it was approved by the legislature just last May.
Most individuals who oppose the expansion of rights for gay citizens argue that they do not constitute a minority group eligible for special protection, or something legally known as a "suspect class." If gay citizens did qualify under this category — which I believe they should — they would be offered the same heightened legal protections given to individuals who are discriminated against based on race, religion and to some extent gender. The thrust of most arguments against placing them as a "suspect class"— or at least the ones worth discrediting — is that sexual preference is a choice, rather than a genetic trait such as race and gender or a decision we may not control such as religious affiliation.
As science continues to bring forth evidence that homosexuality is a genetic trait, the courts will have to rethink the issue of "choice." In the here and now, however, there are encouraging signs that the federal government is taking steps to afford the gay community the types of protections that were given to racial minority groups half a century ago. On Oct. 28, President Barack Obama signed into law a bill that would expand the definition of hate crimes to include those committed because of an individual's sexual orientation. Two days later, the president lifted a 22-year ban on travel to the United States by individuals who are HIV-positive.
While important, these piece-meal advancements are mostly just buildup to the pivotal issue — federal protection for same-sex marriage. The current state of marriage rights for gays has been correctly compared to education for blacks before 1954; that is, separate but grossly unequal. The path towards equality remains stymied by the back and forth battle being waged by moderately progressive courts and open-minded legislatures on the one hand, and conservative-minded citizens backed by a federal judiciary hesitant to take any bold new steps on the other. The question then becomes when will the Supreme Court confront the Brown v. Board of Education case of gay rights, a case which would strike down marriage prohibitions across all states with one fell swoop. Interestingly enough, the answer is perhaps quite soon.
The constitutionality of Proposition 8, a referendum in California in 2008 that took away the right of same-sex marriage, is currently being challenged in court. If the case makes its way up to the Supreme Court, the country will finally get a decision on whether prohibition of same-sex marriage by states is a violation of the 14th Amendment's equal protection clause. If the court decides it is, voters will be stripped of their ability to restrict gay rights via the ballot box, at least on the issue of same-sex marriage. Moreover, should the case be decided on the narrowest possible grounds, a victory would be one step closer to defining sexual orientation as an area properly classified as a "suspect class" alongside race and religion.
At some point during my education at the University, I was taught, and came to believe, that many of our individual rights are so fundamental that they are to be protected from the schizophrenic public opinion of voters and partisan bickering of legislatures. This is why we enshrined certain rights within a constitution and ensured that it would be painfully difficult to later take them away. The right to be protected from discrimination based on sexual orientation should be no different and should be backed by the 14th Amendment.
As attitudes around the country slowly warm to the idea of equal rights for gay citizens, the law will inevitably follow step. Within 20 or 30 years — hopefully much sooner — this debate will seem antiquated, and restricting the rights of gays will seem no more acceptable than telling black children they cannot attend certain public schools. Until that point, we will have to continue to listen to loosely-reasoned arguments about same-sex marriage "corrupting the youth" and "ruining the institution of marriage" and wonder how these arguments are any different from those used to oppose interracial marriage and integrated education decades ago. On such a divisive issue, it is ultimately going to be the turtle pace of the law, "slow and deliberate," which will have to be endured. As Maine votes, and California debates their ability to do so, we can only hope that the turtle is marching in the right direction.
Eric Knecht is a Rutgers College senior majoring in economics and history. His column, "Unfair and Unbalanced," runs on alternate Tuesdays. He welcomes feedback at firstname.lastname@example.org.