Today the Supreme Court passed a landmark decision that essentially made gay marriage legal in every state. I normally don’t write opinions on things like this right away, but this seems like one of those times where it might be good to document the feelings of the times. Facebook is going crazy. People are either celebrating or predicting the end of the world. I can’t think of an issue relevant to so few having such a big impact in the arena of public opinion. So for the sake of posterity, here are my first impressions.
I should preface this by saying that I have no problem with gay marriage. If I was in the wedding industry, I would have no problem baking a cake, catering, providing the flowers or selling rings to gay couples. If any of my kids turn out to be gay, I would happily walk any of my boys or girls down the aisle and give them away. I say this because not all of my first impressions were totally positive. In fact, I think there are more questions than answers at this point.
The good stuff
The ruling hinged on the 14th amendment and basically says that if a state issues marriage licenses to straight couples, then not issuing marriage licenses to other couples creates a situation where one group of people have rights that other groups of people do not have. All other things being equal, I have a hard time arguing with the logic. If two people love each other and want to get married why should I interfere with that? More power to you. In fact, I often say that when faced with the prospect of siding with an individual or the government, I will always choose the individual. This seems like a win for individuals. Another good thing is that this decision has absolutely nothing to do with your right to sell or not sell cakes, flowers or food to couples for their gay weddings. This decision in no way will force churches to perform wedding ceremonies against their will. That’s a good thing for those individuals.
The bad stuff
The Supreme Court’s decision in essence ruled that the 14th amendment can overrule the 10th amendment. In brief, the 14th amendment grants every person in America equal protection under the law. This means that the state cannot treat one person different than another person, or the state can’t have one set of rules for one group and another set for another. The 10th amendment says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Basically, the Constitution spells out exactly what the federal government can and cannot do. If something is not on the list it gets settled on a state by state basis. The problem here is that the Constitution makes no mention of marriage, so it would normally fall to the states to decide. The Supreme Court got around this by in essence calling marriage a “right” that needs to be protected. In placing the 14th amendment over the 10th amendment, they sort of claim a hierarchy to Constitutional amendments. That’s not good, because if we can now place the amendments in order of importance, what else would be below the 14th? If you confer the meaning to the 14th amendment to say that marriage is a fundamental right, are we now going to list every fundamental right covered by the 14th amendment? Or are we going to let the federal government just add them as they come up, transferring the power from the state to the federal government one by one?
I’m not sure what to think stuff
The implications are unknowable. While I remain happy for those who would like to be married, or enter a civil union, or whatever the term would be, I worry about the rights of the people who aren’t happy about this. Will this eventually trickle down to the wedding industry? Will the federal government use the 14th amendment to force baker’s to make the cakes since they would cater straight weddings? Will the 14th amendment trump the 1st amendment? Why do we even need marriage licenses? How is it even the business of the government who we marry in the first place? It seems like it should be a simple contract between interested parties, and that’s all. The wedding or marriage part is a symbolic ceremony performed by churches. The issue at hand isn’t marriage, it’s the state issued marriage license. It seems like the real problem was created by government and then “solved” by the government. Why go through the middle man?
At any rate, congratulations gay people. These are my unedited first thoughts on the subject. If I get around to it, I will revisit this blog in the future and see if any of my first impressions have changed.