In 225 years of Supreme Court rulings, congressional sessions, and presidential elections, virtually all officials involved have failed to discover what President Obama now claims to be an absolute truth: The U.S. Constitution guarantees the right to homosexual marriage.
In a recent interview with the New Yorker’s Jeffrey Toobin, Obama said his favorite Supreme Court decision during his administration thus far was not an actual ruling from the court, it was the recent decision made by the justices to avoid hearing cases that appealed lower-court decisions to strike down laws that define marriage as exclusively between a man and a woman.
When Toobin pointed out that Obama, as recently as 2012, was seen as a supporter of traditional marriage, Obama emphatically declared that he now opposes traditional marriage laws and believes gay marriage is a constitutional right guaranteed to all Americans in every state.
“Ultimately, I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states,” Obama said to Toobin. “But, as you know, courts have always been strategic. There have been times where the stars were aligned and the Court, like a thunderbolt, issues a ruling like Brown v. Board of Education, but that’s pretty rare. And, given the direction of society, for the Court to have allowed the process to play out the way it has may make the shift less controversial and more lasting.”
Obama’s appeal to the Equal Protection Clause, a popular argument made by gay activists, is more than a little dubious; it’s an all-out assault on the very foundation of the Constitution.
The Equal Protection Clause, found within the 14th Amendment, 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.”
It is here, in the section of the clause mandating that states must not deny “equal protection of the laws,” that Obama as well as multiple federal appellate courts allege the Constitution must allow for gay marriage. If the law is going to be equally applied, and the law states that only heterosexual couples can be married, then the rights of homosexual couples around the country are currently being violated wherever a gay marriage ban exists.
It doesn’t take a constitutional law professor, which Obama once was in his days teaching courses at night at the University of Chicago, to see the obvious flaw in this reasoning.
Properly applied, the Equal Protection Clause guarantees that all Americans, regardless of race, class, wealth, disability, health, or sexual orientation receive equal treatment under the law. The Supreme Court was correct in applying this clause in Loving v. Virginia, when it struck down a Virginia law that banned interracial marriage. In that case, the court determined that it was unconstitutional for a state to establish a law that effectively treated people of one race differently than people of another.
While it is true that marriage laws define marriage as a union between opposite sexes only, they do not, in any way, discriminate against anyone — including homosexuals.
Laws that establish traditional marriage do not prevent homosexual people from getting married. Like anyone else, a homosexual can get married to a person of the opposite sex. Nothing prevents a gay man from marrying a heterosexual woman or even a homosexual woman. Two heterosexual people of the same sex are also unable to marry. Again, there is nothing inherently discriminatory about traditional marriage laws.
What Obama would like the Supreme Court to do is to say that because homosexual people do not have access to homosexual marriage, their rights to equal protection under the law have been violated. But this ridiculous claim, when applied to virtually any other law, is supported by no one.
Based on Obama’s reasoning, wealthy people should be entitled to welfare programs, young people should be entitled to social security benefits, and the drinking age should be moved down to 18 years old. In all of these situations, one group of people is denied access to some benefit or behavior, so why isn’t that a violation of the Equal Protection Clause?
The obvious answer is because the clause only guarantees that laws are applied equally, not that all laws must give equal benefits to all people. Obama knows this, which is precisely why he opposed the notion of constitutionally guaranteed gay marriage until now, when he thinks the political winds favor such a position.
Someone needs to explain to Mr. Obama that the Constitution can’t spontaneously change to meet the political needs of whatever governing official happens to be in power that day. “Inalienable rights” are rights that cannot be altered, transferred, or removed, regardless of what the president wants, and the states, not the courts, have been guaranteed the right under the 10th Amendment to determine all those issues not reserved to the federal government or to the people.
Defining marriage is certainly one of those issues, and Mr. Obama, as well as those Republicans who wish to force gay marriage bans on all the states, must respect that indisputable fact.
Justin Haskins (Jhaskins@heartland.org) is an author, blogger, and an editor of publications at The Heartland Institute, a leading free-market think tank based out of Chicago, IL. You can follow him @TheNewRevere or visit his personal site online at http://traskhaskins.com/.