D'Souza: The Equal Protection Hoax

By now, we should all be aware of the recent decision made by the California court system to overturn the will of the people in giving homosexuals "equal protection," by allowing them to marry. My biggest concern here isn't necessarily the issue of homosexual marriage, but rather judicial tyranny. We do not live in a democracy if a court can simply override the will of the people.

But Dinesh D'Souza, author of "What's So Great About Christianity?" and "Letters to a Young Conservative," has written an interesting article relating to the recent court decision in California. His ultimate argument is that allowing homosexuals to marry isn't exactly making us equal, rather it is doing the opposite. It is an interesting argument and one I had not thought of before. It is worth our time and thought though.

As it relates to the issue of homosexual marriage, I must ask, "where does it stop?" If homosexuals are allowed to get married, why shouldn't pedophiles (assuming that he sex is consensual of course) and those who practice bestiality? Is it not discrimination to not allow such persons their form of sexuality, just like everybody else? Shouldn't government stay out of our bedrooms?

The same argument that is made for homosexual marriage can also be made for these other sexual lifestyles. Therefore, I must ask again, where does it stop? Are we going to allow polygamy and any number of sexual lifestyles? Whenever government starts debating marriage and in the process looses it's sanctity, then we begin to go down a slippery slope. By making marriage relative, we open ourselves to every and any form of sexual lifestyles.

The issue of homosexual marriage goes deeper than religion. And it is time for us to have a sober conversation, rather than a dialogue of name calling. Where will the madness end? If truth be told, in a culture going secular like ours, it never will?

Who knows what marriage will look like in the next generation? Who knows even if it will be in our dictionaries?

Here is the D'Souza article:

It is said that justice is equality, and so it is, but not for all persons, only those who are equal.
--Aristotle

In overturning the California voters' ban on gay marriage, the state's high court argued that homosexuals are a special class, somewhat similar to blacks and women, and deserve special judicial scrutiny for the protection of their rights. At the same time the court insisted that gay marriage must be allowed because gays deserve, no less than anyone else, the equal protection of the laws.

This argument is dubious on two counts. First, blackness and femininity are outwardly identifiable characteristics. Homosexuality generally is not. True, some homosexuals adopt exhibitionistic ways of walking and talking which perhaps serve as a kind of signal to others similarly inclined. But gays can "pass" for straight in a way that blacks can't typically pass for white or women for men. Moreover, blacks were slaves and suffered historical oppression in a way that neither women or gays can match. So the idea that these groups are the "new blacks" is an insult to blacks. Finally whether there is an innate disposition to homosexuality or not, it's hard to deny that homosexuality constitutes a choice and a lifestyle. Whatever the orientation, one still has to choose to act on it. By contrast, blacks and women don't have any choice because race and gender are not a lifestyle.

Now let's turn to the issue of equal protection. Clearly this means that people who are similarly situated should be treated in the same way. So men and women, blacks and whites, straight people and gays, all have the right to vote, the right to speak their mind, and the right to marry. But gays already have the right to marry, just like the others. They have the right to marry adult members of the opposite sex. What they want, however, is the right to marry members of the same sex. This, however, is not a right enjoyed by anyone else. In other words, gays are not asking to be treated the same as everyone else. They want special rights that no one else claims or enjoys. They want to rewrite the definition of marriage.

Put the matter another way. States, acting through their representatives and reflecting the values of the voters, have the constitutional authority to define what marriage is. Traditionally marriage requires: a) two persons b) both of them adults of legal age c) unrelated to each other and d) one male and the other female. Now here are some interesting possibilities. A 10 year old demands the right to marry, charging that the age requirement discriminates against him. Or a fellow wants to marry his sister, contending that the incest prohibition violates the equal protection clause of the Fourteenth Amendment. Or a Muslim seeks four wives, asking why polygamy among multiple "consenting adults" should not be allowed the same legal status as the traditional two-person arrangement. In more imaginative scenarios, a fellow might want to know why the marriage definition is so species-specific. This guy wants to marry his dog on the grounds that "I love my dog and my dog loves me." Why don't all these people have valid equal protection claims under the constitution?

The point here isn't that gay marriage is indistinguishable from polygamy or child-marriage. Rather, it is that gay activists want to dislodge one of the definitions of marriage but retain all the others. They want to move one of the goal posts but not the rest. But how can one part of the marriage definition be discriminatory under the laws while the other parts are not? If the male-female requirement violates the equal protection clause, so must the other requirements which also exclude classes of people. If gays are a special category, why aren't Muslims and Mormons also a special category? It seems that gay activists want a form of "equal protection" for themselves but not for other groups.

Neither equal protection nor antidiscrimination is a real issue here. Judicial tyranny is the issue. Isn't it interesting how even the most naked imposition of power must make the pretense of having justice on its side?