And Your Wife, Too

In Russia, gays have “the same rights and freedoms as everyone else.”  LOL.  That’s what we’re worried about – the same rights and freedoms as everyone else in Russia!  Seriously, though, we had a real challenge analyzing the legal issues facing the Supreme Court this month.  The H&HS Department is the plaintiff in the first case:

Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

Ken Klukowski presents this as a states’ rights case, and Jeremiah would normally side with the state – except that it is also a civil rights case.  It is not reasonable for a vote of the majority to deprive any minority of their civil rights.

The Justice Department has declined to defend the second case:

Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.

This one has a plaintiff with real damages, denominated in dollars.  Edie Windsor is suing over tax due on her wife’s estate, which she does not have to pay if the IRS legally recognizes her marriage.  Note that the IRS is a federal, not a state, entity.  This seems like an open-and-shut case of equal protection.

So, we have the state versus federal argument, and the state versus individual rights – and we have the legislation versus constitution argument.  These all work out in favor of gay marriage, assuming the Court can read a “right to marriage” between the lines, as they have previously found a “right to privacy.”

Opposing arguments are blatantly bigoted, like Archbishop Cordileone stating, without evidence, that gay marriage is bad for children.  The Church State Council wrote such a piece of sophistry – “equality” is your religion, tradition is ours – that they overlooked the one good church versus state argument.

The root problem is that the state has used marriage pervasively as a legal status.  Who else can be on your health care?  Your tax return?  Your gym membership?  Who else can visit you in the hospital, and pick your kids up from school?  The church cannot now claim trademark rights, as it were, and assert that this legal status is subject to their authority.

 See also:  Same-Sex Unemployment


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