A “Conservatarian” View of the SCOTUS Same Sex Marriage Decision

I’m not a constitutional scholar, but I’ve invested a good amount of time in this issue. I don’t need to reiterate what others have said about the intricacies of the Equal Protection clause of the Fourteenth Amendment. Simply started, the Equal Protection clause states that all Americans are entitled to equal protection under the law, period.  What bears stating is the legal precedent in referencing the Fourteenth. Prior to the Civil Rights Act of 1964, there were “Jim Crow” laws in the southern states that required the states, under law, to segregate based on race. Facilities were supposed to be “separate but equal.” They rarely were equal. President Woodrow Wilson, an overt racist, practiced gross discrimination. The equally overt racist Democrats of the late 1800s through the mid 1960s did everything possible to undermine the anti-segregationist policies of the Republicans. The southern states felt their state sovereignty allowed them to discriminate within the borders of their states. The Equal Protection Clause of the Fourteenth was the constitutional basis for the federal government to overrule state sovereignty because the federal government is responsible for ensuring all citizens get equal protection under the law. Given the preponderance of states that have marital equality laws, it was not, in my mind, a far stretch to apply the same principles that shot down Jim Crow. What the Fourteenth does not touch is the right of people that are not agents of the state from discriminating except in areas such as housing and employment. This ties into the Establishment Clause of the First Amendment. By law and practice, churches are not agents of the state. Congress cannot force a non-agent to act. I am an ordained minister. I cannot be compelled to perform any service for anyone. I don’t know the individual laws of every state where marital equality is the law, but I can tell you that Maryland’s law is well-crafted and explicitly protects the clergy. Here is the text of Question 6, the public referendum for marital equality in Maryland,

“Establishes that Maryland’s civil marriage laws allow gay and lesbian couples to obtain a civil marriage license, provided they are not otherwise prohibited from marrying; protects clergy from having to perform any particular marriage ceremony in violation of their religious beliefs; affirms that each religious faith has exclusive control over its own theological doctrine regarding who may marry within that faith; and provides that religious organizations and certain related entities are not required to provide goods, services, or benefits to an individual related to the celebration or promotion of marriage in violation of their religious beliefs.”

I am a libertarian. I voted for Question 6 even though I will not personally perform a same-sex ceremony. I am not discounting what I believe to be the biblical truth on the topic. I am standing behind the right of two people to enter into a legally binding contract, which in the eyes of the state, is what marriage is.

The reason we have this mess is that our bloated government stuck its nose into marriage, a thing formerly under the scope of religious bodies. It chose to grant legal privileges to married couples. Once it did that and the individual states began to legalize same sex marriage, it was inevitable that it would have to respond.

Before we are too quick to respond to this ruling, think of where America would be if Jim Crow was still in existence.

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