Yesterday’s ruling by a California federal court striking down the state’s ban on gay marriage opens a constitutional Pandora’s Box.
The court ruled that the gay marriage ban violates the Equal Protection Clause because homosexuals should be just as free to marry whoever they choose as heterosexuals. The court concluded that there is no rational basis for a distinction between the marriage of a man and a woman and the marriage of a man and a man.
Whether the failure to see any rational distinction there is itself rational will be decided on appeal. But as of now the decision has established a constitutional right to gay marriage. When did the people ever decide to adopt that in the Constitution?
If that decision stands, it will be a precedent for other challenges to state marriage laws. If there is no rational basis for a distinction between heterosexual marriage and homosexual marriage, is there a rational basis for a distinction between bigamy or polygamy and monogamy?
If a woman wants to marry the man she loves, what is the rational basis for saying she can’t do so just because she is married to another man who she says she also loves?
What if the other man grants his consent to the second marriage, maybe because he wants a second marriage himself?
Suppose they both then want to marry others? Does the concept of marriage then have any meaning? Is marriage itself rational any more?
Indeed, the now opened questions go beyond even this. Suppose a 65-year-old widow wants to marry her beloved cat. What is the rational basis for the government denying that? If that becomes a precedent, what is the rational basis for the government denying a younger woman marriage to other animals?
Ok, this is getting gross, I admit. But this wasn’t my idea. I would have kept the line at marriage between a man and a woman. What is the rational basis for formal legal recognition of anything else?
Peter Ferrara is General Counsel of the American Civil Rights Union, and a former Associate Deputy Attorney General of the United States. He also serves as Director of Entitlement and Budget Policy of the Institute for Policy Innovation.
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