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Opening Arguments

A right way to the left?

The Cato Insitute is a libertarian think tank that frequently infuritates conserrvatives and liberals in equal doses. Now it is using a conservative constitutional approach (stressing the actual text and original intent of the Constitution) to argue for a liberal cause -- gay marriage. It has to do with the 14th Amendment and the Loving v. Virginia Supreme Court case that tossed bans on interracial marriage:

That amendment, adopted after the Civil War, stipulates that states shall not deny "to any person . . . the equal protection of the laws." This, says Cato, effected a profound change in the nature of the Constitution, "from one that sanctioned inequality to one that prohibited it."

Notably, the equal-protection clause is not limited to "any black person" or "any straight person" but to any person, period. As one of its drafters, Rep. John Bingham, said, it insists that "all persons, whether citizens or strangers . . . have equal protection in every State in this Union in the rights of life and liberty and property."

The brief goes on to argue that "the original meaning of the equal protection clause confirms" that it "applies broadly to all persons." When he introduced the amendment in the Senate, Jacob Howard—so closely associated with the amendment it sometimes was called the "Howard Amendment"— stressed that it "abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another."

Now, this only matters if marriage is a fundamental civil right rather than an ordinary privilege, like the ability to chew gum in public or wear yellow on Thursdays. The Supreme Court decided that in the Loving case.

Marriage, Cato argues, is "a basic civil right of all persons"—one the Supreme Court described in Loving v. Virginia as a "vital personal right essential to the orderly pursuit of happiness." It is not a privilege or a blessing conferred by the state, but an aspect of liberty: As Sen. Jacob Howard explained, "a slave 'had not the right to become a husband or father in the eye of the law," whereas "the attributes of a freeman according to the universal understanding of the American people" included "the right of having a family, a wife, children, home." Cato quotes an African-American soldier: "In slavery we could not have legalized marriage: now we have it."

The Supreme Court consistently has held that "choices about marriage . . . are among associational rights this Court has ranked as 'of basic importance in our society.'"

In fact, the Supreme Court has gone so far as to rule that even prison inmates, who have lost so many other rights, still retain the right to marry. "Certainly," observes Cato, "if the right to marry is so fundamental that there is no reasonable basis for denying the right to incarcerated felons, there is no basis . . . for denying that right to committed, loving, same-sex couples.

This must be one of my libertarian days -- I confess I find the argument compelling. It would seem to put gay-marriage opponents in a difficult position. They support traditional marriage because it is a vital, "fundamental" part of life. But if the right to marry is fundamental, how can it be denied to a whole class of people?

On the other hand, how far is Cato prepared to go in supporting the right of each and every class of people to marry? How about bisexuals? Aren't their rights as valid as heterosexuals' and homosexuals'? If so, isn't Cato impicitly endorsing group marriage? How about close relatives? Is forbidding incest now unconstitutional?