My good and honourable friend quotes from a story, saying
The Constitution does not guarantee the right to enter into a same-sex marriage
You are exactly right, Jim. So is the author of the original story at this point, but the point of whether or not there is a right to have gay sex does not slide easily into the Constitution and is not ripped harshly out of the hole we’ve made it. This ugly, nasty legal quandary is bumped into the autodidactic field too easily, I think.
However, the actual argument must be whether or not the same access to civil rights is constitutional.
Since Marbury v. Madison, 5 U.S. 137 (1803) and Fletcher v. Peck, 10 U.S. 87 (1810), the Supreme Court has interpreted its founding article to mean it gets to decide was is constitutional or not. While Justices such as Scalia and Thomas pretend to know exactly what the authors of the Constitution was thinking, John Marshall and his Court of 1803 knew precisely, because at least one of them had helped to ratify it. What did they think it meant? The Marshall Court believed they could invalidate legislation if it was against the Constitution.
What is often forgotten is that the Constitution was not originally about granting rights (if you grant them, you can take them away), but about drafting prohibitions against the Federal Government. Only with the so-called Civil War Amendments did the prohibitions begin to affect State Governments and their relationship with their citizens and come to include the equal protections clause.
There is no right in the Constitution for two people to engage in coitus of any type — straight, gay, good, bad, or otherwise. There is, however, provisions insuring equal protection under the law. Therefore, if you give to one group, say, the right to vote, you must give it to others. Or, if you give to one group the right to enjoy the benefits of a government sanctioned contractual union (i.e., marriage), then you must give it to others.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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. (14th amendment)
So, Jim is correct — there is no constitutional right to be sexually active; however, if you allow one group to enjoy the benefits of government sanctioned marriages, then you must protect the right of another group.
This can be remedied by a Constitutional amendment, however, and this must be a discussion we have. We should have.
- “Overthrow the Men Who Pervert the Constitution” (godfatherpolitics.com)
- A Decision That Cannot Be Defended (lawyersgunsmoneyblog.com)
- Questions of Principle (lrb.co.uk)
- One Nation, under Judges (thetribunepapers.com)
- Civil Rights Amendment “Originalism” (washingtonmonthly.com)
- Why Overturning DOMA Is a Win for Employee Rights (workers-compensation.blogspot.com)