In my last article, “Why Prop 8 and anti-gay sentiment have to go”, I discussed a number of reasons why gays were entitled to marriage rights under the constitution. I hastily erupted as to why the 14th amendment and equal protection automatically guaranteed those rights. Here I will attempt to take a more specific and legal position.

The Supreme Court of the United States has more than once acknowledged  that homosexuals are entitled to certain rights under the constitution–most notably in the Romer V Evans and Lawrence V Texas decisions.

In Romer V Evans, the Supreme court ruled in a 6-3 decision that Amendment 2 that passed by initiative in Colorado was unconstitutional. Amendment 2 banned anti-discrimination laws for gays in Colorado.  In  rejecting this preposterous notion, Justice Anthony Kennedy wrote: “The amendment imposes a special disability upon those persons alone. [through this amendment,] homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.” Justice Kennedy argued that because the anti-discrimination laws did not give preferential treatment, but only ensured that the liberties all citizens enjoy were not denied to gays.

In Lawrence V Texas, the supreme court overturned a sodomy law in a 6-3 decision finding that the statute unfairly targeted not only the rights of gays, but also their privacy. While the majority of the supreme court still did not recognize what the plaintiff argued  was a “fundamental right,” they did acknowledge that Lawrence’s rights, and for that matter gay rights had been violated under the Texas sodomy laws.

Although the court did maintain that both of these decisions did not give homosexuals the right to marry, the simple question is: why not? If the supreme court declared with these decisions that homosexual rights and anti-discriminatory protections were civically violated in Lawrence V Texas and Romer V Evans, and that such civil rights are protected by the equal protection clause, how can it not be rational that a civil legal marriage is not also constitutional. The response of the conservative court is that gay marriage is a social issue and not a place for courts to take a stance. Needless to say it is difficult to understand how equal rights are a social issue but then I guess the same arguments were made by proponents of slavery.  How can anything that provides legal and civic benefits be social and not civil? If marriage is indeed a civil issue and a civil right, how does the 14th amendment not encompass and protect that right. How can you insist that some rights of gays are protected, but not all? It’s baffling. I am not abusing the 14th amendment or even making claims for laws that haven’t already been made; I am merely stating that it is inconceivable for the supreme court to declare that gays are equally protected as a minority under specific laws but then deny them the same equal rights under all laws.

Conservative critics will probably argue with me about how the constitution says nothing about homosexuality and that’s true. But it also says nothing about a government’s right  to purchase land as Jefferson did in 1803. It also says nothing about John Marshall’s proclaimed judicial review. Moreover it says nothing about  the rights of privacy. Yet, I don’t see conservatives complaining about those implied powers.

The previous supreme court decisions that have guaranteed certain rights under the constitution and lay the very foundation for the argument of gay marriage. How can anyone possibly make the argument  that only some laws provide the guarantee of equal protection  and not all of them? How can the supreme court strike down sodomy and a ban on anti-discrimination laws possibly not symbolize a judicial understanding that gays are entitled to equal protection as a minority group. By Justice Kennedy recognizing gays as a minority, he also recognizes their natural rights as citizens. I am not manipulating anything for the sake of a cause; I am only reading the 14th amendment and taking those words to mean the simple things they purport to say.