Today and tomorrow, the United States Supreme Court hears arguments in two cases about same-sex marriage. There’s going to be a lot of bluster, but in the end the whole thing boils down to a few key issues. Here are the issues as I see them, and the fundamental logical disconnect that anti-equality forces are hoping nobody notices.

First, they say “it’s intolerant for you not to tolerate my intolerance.” Sound ridiculous? That’s because it is. Using the argument of race, that line of reasoning suggests that the people who were against different water fountains and different seats on the bus were the ones who were really intolerant, because they refused to tolerate the views of those who would deny liberty to everyone. The argument is laughable on its face.

The next argument (that seems to be made in court) is that it’s fine to exclude same-sex couples from marriage because the government has an interest in promoting marriage. Well, that one sounds nice, until you examine it more closely. For a government policy to pass the “rational basis” test, the policy has to have a (you guessed it) rational connection to the purpose it seeks to advance. The problem here is that there’s nothing to indicate that allowing same-sex couples into the institution of marriage compromises or defeats the purpose of promoting marriage as an institution. In other words, the policy and the goal have nothing to do with each other. The people behind these bans know that, so they’ve thrown in arguments like “this is all very new, we don’t know what the impact will be, so we have the right to proceed slowly.” The problem with that argument is what happens when you decode it. What it means is basically that they don’t know whether or not straight people will think marriage is tainted solely because gay people have been allowed in too. That’s called animus, and the Supreme Court held in Romer v Evans that animus against a particular group of people doesn’t count as a rational basis for government policy.

The next line is something to the effect of “millions of people have decided this matter at the ballot box, so the courts have no right to intervene.” As a general rule, I don’t think that leaders of the movement against marriage equality are stupid. I do think, however, that they are more than a bit disingenuous. The United States is not a democracy, at least not in the traditional Athenian mould, where every issue was voted on, and the result was binding. Rather, the United States is a constitutional republic. It uses certain democratic mechanisms, but none of that takes away from the reality that at its heart is an entrenched Constitution that reigns supreme over everything. Anything that conflicts with it simply cannot stand, and the courts strike down all manner of democratically enacted laws where they conflict with the Constitution. Let’s not forget that many of the same people who oppose the courts striking down equal marriage bans were fervently hoping that the very same courts would strike down the Affordable Care Act (Obamacare).

Of course, there are some who have argued that ballot initiatives are different. These aren’t legislators riding high on the hog, entertaining lobbyists and the like. No, these are citizens, and their opinions are sacrosanct. This argument is not appropriate. First of all, from a general point of view, it would render the Bill of Rights meaningless. It can’t be imagined that we would take away rights from all of the minorities protected just because those measures were passed at the ballot box instead of a legislature. Second, from the point of view of established law, the courts agree with this analysis. In Citizens Against Rent Control v City of Berkeley Chief Justice Berger noted that “[i]t is irrelevant that the voters rather than a legislative body enacted [this law] because the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation.” Translation: if a measure is unconstitutional, it doesn’t matter who passed it; it is unconstitutional all the same.

So what’s left? Accidental procreation. You know things are rough for you when your last argument is that the foundational building block of society exists solely (or at least mainly) because someone might get knocked up by accident, and there needs to be a way to channel those potential disasters into some semblance of stability. Well, if we adopt the maxim that similarly situated people are to be treated alike, post-menopausal women shouldn’t be allowed to marry. Neither should anyone who’s infertile. Contrary to popular opinion, neither is difficult to establish. Some jurisdictions require mandatory blood tests to screen for various bugs before a marriage license is granted. Tack on a fertility test.

The reason we don’t require those tests is that fertility, age, and childbearing capability are not central to marriage. Have a look at the vows that are exchanged at your typical wedding. Nobody promises to produce offspring. They promise to love, honor, and cherish each other through good times and bad.

In the end, nobody is (or at least nobody should be) suggesting that people aren’t entitled to their religious beliefs, and let’s face it: the bulk of the opposition to marriage equality is built on religious belief that “marriage is between a man and a woman.” That’s all well and good. The people who believe that are free to believe it. Believe it or not, when the law changes, Saxby Chambliss isn’t going to be forced to marry a man. He won’t even be forced to accept that marriage is anything other than what he believes it to be as a tenet of his faith. However, the fundamental basis of the US Constitution is that nobody gets to force their religious beliefs on the rest of the country. It’s the reason why the first colonists left Britain and came to America to build new lives for themselves, free to believe and worship as they wished, without the heavy hand of government denying them their beliefs. Part and parcel of that is to understand that the very idea of America is that nobody has the right to impose their religious dogma on anybody else. The sooner marriage equality is made legal, the sooner America will have taken another step closer to its goal of a more perfect Union.

Submitted By: Sameer Ismail
Sameer Ismail has been a political consultant for a number of years. He holds a degree in Political Science from the University of British Columbia, and is currently completing a degree in Law.

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