On Gay Marriage

        Over the past year, we have witnessed several high profile public figures ‘come out’ in favor of gay marriage.  

        In May 2012, Joe Biden declared he was ‘absolutely comfortable’ with gay marriage.  Soon thereafter, Barack Obama opened up about his ‘evolution’ on the issue.    

I have to tell you that over the course of-- several years, as I talk to friends and family and neighbors. When I think about-- members of my own staff who are incredibly committed, in monogamous relationships, same-sex relationships, who are raising kids together. When I think about-- those soldiers or airmen or marines or-- sailors who are out there fighting on my behalf-- and yet, feel constrained, even now that Don't Ask, Don't Tell is gone, because-- they're not able to-- commit themselves in a marriage.

At a certain point, I've just concluded that-- for me personally, it is important for me to go ahead and affirm that-- I think same-sex couples should be able to get married.

        Most recently, Senator Rob Portman (R-OH), admitted that he has come to support gay marriage in the two years since his son revealed to him that he was gay. 

        These conversions reflect very personal considerations.  These leaders have predicated their support of gay marriage upon notions of comfort, familiarity, and close contact with gay individuals.  I found this odd, because I have referred primarily to Constitutional principles in which to assess the legality of gay marriage. 

        Initially, it seemed the equal protection clause of the 14th Amendment protected gay marriage.  The equal protection clause prevents legislative “prejudice against discrete and insular minorities,” because such prejudice “may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”  United States v. Carolene Products Company, 304 U.S. 144, fn. 4 (1938).  Gay individuals and gay couples appeared to me to be discrete and insular minorities worthy of protection.  Gays uniformly profess to be ‘born that way’ and unable to change their sexual preference through will power.  In this sense, gays are like blacks and other racial minorities who were simply born into their ethnic background.  Women are actually in the majority, and yet legislation especially affecting them is subject to heightened scrutiny because of historical bias against them.  Through American history, the government and society has frequently discriminated against gays, who comprise only about 3.5% of the population.  Indeed, the biological distinction between a homosexual man and a heterosexual man is considerably slighter than the biological differences between a heterosexual male and a heterosexual female.  Courts should recognize homosexuals as a discrete and insular minority, and should protect them from majoritarian legislation which specifically targets their interests, such as the Federal Defense of Marriage Act or state anti-gay marriage ballot measures.  

        Marriage is more than a mere interest, and courts recognize a fundamental right to marriage.  In Loving v. Virginia, an interracial married couple challenged Virginia’s prohibition on miscegenation.  A unanimous court joined Chief Justice Earl Warren in overturning Virginia’s anti-miscegenation statute.  He wrote:

Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.  Loving v. Virginia, 388 U.S. 1 (1967). 

      As a fundamental right, any legislative impediment to marriage must overcome strict scrutiny.  Laws to prevent gays from marrying one another lack any discernible rational basis, much less do such laws address a compelling state interest.  Gay marriage critics assert that the institution of marriage promotes and protects the bearing and rearing of children.  While certainly true, gay marriage critics have more trouble explaining how denying the marriage franchise to gays furthers the purpose of bearing and rearing children.  What great danger follows the union of Fred and Ted, in the eyes of the state?  

     None.  It is really only societal discomfort and unfamiliarity which motivates a prohibition on their marriage.  The high profile conversions to gay marriage may seem too personal, even troublingly so, given their sophisticated legal training and their oaths to uphold the Constitution.  Nevertheless, they cut directly to the political instincts of gay marriage critics.  Opposition to gay marriage is really about discomfort and unfamiliarity.  The expressed personal character of each high profile defection in support of gay marriage has clarified an important point; opposition to gay marriage lacks a rational basis.   

March 18 Update: Hillary Clinton declares support for gay marriage, stating: "I support it personally and as a matter of policy and law."