Separate But Equal?

One of the most prevalent arguments that I have seen in recent weeks against Proposition 8 is that Proposition 8 is wrong because it would treat people separately but equal. Those who are against Proposition 8 argue that being able to “marry who you love” is a fundamental right, and the "separate but equal" treatment violates that right.

This argument against Proposition 8 not only mischaracterizes the issue, but does so in a way that is calculated to put supporters of traditional marriage on the defensive. The right to marry has never been an unfettered right. Even today, we maintain important restrictions on the right of individuals to marry. (For example, not permitting marriage between close relatives or prohibiting someone from being married to two people at the same time).

There is nothing in the text of either the California or United States Constitution that explicitly provides that same sex marriage is a “fundamental right.” Nor is there anything in our nation’s history or traditions that establish same sex marriage as a “fundamental right.” Only three states, Massachusetts, California, and Connecticut, even allow same sex marriage and all three states only recently “discovered” this right after their Supreme Courts ruled in closely divided decisions (4-3 votes in all three states) that such a right existed.

While, as a society, we may want to add individual rights, those rights are not necessarily “fundamental rights” and, in a democracy, weighty decisions such as creating new rights should be decided by a vote of the people—not judges.

The “separate but equal” argument is also misleading because Proposition 8 does not treat people separately. If Proposition 8 passes, no one will be prevented from marrying. Individuals in California will be free to marry so long as they marry someone of the opposite gender and so long as the marriage does not violate other long-standing regulations governing marriage in California.

Those who persist in arguing for the “fundamental right” to “marry who you love” face an additional hurdle. If everyone has the right to marry who you love, why wouldn’t three women who love each other be allowed to marry? What about polygamous marriage? Shouldn’t consenting adults in these types of relationships have the right to marry?

If same sex marriage is permissible because an individual has the right to marry whomever he or she loves, the only intellectually honest reason for prohibiting these types of extreme alternative marriages is that they are not socially acceptable. But once you accept that society has a right to limit some marriage relationships, you recognize society’s right to also define marriage in a way that benefits society as a whole. That is exactly what Proposition 8 does. That is why I’m voting for it.

--Greg