Constitutional Law

The Moral and Constitutional Case for Gay Marriage

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Writing in yesterday's New York Daily News, Cato Institute Chairman Robert A. Levy makes the moral and constitutional case for gay marriage:

Whenever government imposes obligations or dispenses benefits, it may not "deny to any person within its jurisdiction the equal protection of the laws." That provision is explicit in the 14th Amendment to the U.S. Constitution, applicable to the states, and implicit in the Fifth Amendment, applicable to the federal government….

To pass constitutional muster, racial discrimination had to survive "strict scrutiny" by the courts. Government had to demonstrate a compelling need for its regulations, show they would be effective and narrowly craft the rules so they didn't sweep more broadly than necessary. That same regime should apply when government discriminates based on gender preference.

No compelling reason has been proffered for sanctioning heterosexual but not homosexual marriages. Nor is a ban on gay marriage a close fit for attaining the goals cited by proponents of such bans. If the goal, for example, is to strengthen the institution of marriage, a more effective step might be to bar no-fault divorce and premarital cohabitation. If the goal is to ensure procreation, then infertile and aged couples should be precluded from marriage.

Instead, most states have implemented an irrational and unjust system that provides significant benefits to just-married heterosexuals while denying benefits to a male or female couple who have enjoyed a loving, committed, faithful and mutually reinforcing relationship over several decades. That's not the way it has to be.

Read the whole thing here.