The presence of same-sex marriage bans on ballots in Florida, California, and Arizona earlier this month resurrected a passionate debate over marriage.  Despite the emotion that is permeating the debate, the legal argument against gay marriage remains forceful and sensible.         

As the pro-gay marriage argument goes, current laws that limit marriage to a union between one man and one woman “discriminate” against homosexuals. 

The reality is that such laws do not discriminate.  Rather, they distinguish, as all laws do, between certain types of behavior.  The flaw in the pro-gay marriage, equal rights argument is that marriage laws deny homosexuals a “right.” 

The current state of marriage, however, does not deny anyone a right . . . nor is it a “right” at all.

Legal Argument Against Gay Marriage, Part 1: Marriage Does Not Deny Anyone’s Rights

Current marriage laws give all adults the right to marry one member of the opposite sex.  They also forbid all adults from marrying (1) a direct blood relative, (2) someone who is already married to someone else, and (3) someone of the same sex.  Everyone has the same right, and everyone–men and women, and homosexuals and heterosexuals–is prohibited from engaging in certain types of behavior.

The very purpose of laws is to outline which types of behavior are acceptable, and they all, to some extent, place limits on our freedom.  An individual, for example, can smoke a cigar, but he or she cannot use cocaine.  I can drive a car on the highway, but I can’t drive it 80 miles per hour.

There is no question that the law prohibiting cocaine use detrimentally affects someone who would rather use cocaine than smoke a cigar.  Likewise, the law prohibiting me from exceeding the speed limit on the highway negatively affects me if I want to emulate a NASCAR driver on I-95. 

But that is not discrimination.  Driving at or below the speed limit on I-95 is legal for everyone who has a driver’s license.  By contrast, exceeding that speed limit is illegal for everyone, regardless of race, gender, religion, or sexual orientation.  If you prefer speeding past everyone, that is simply a restriction that you, like anyone else, will have to accept. 

If you choose not to drive because of that restriction, that’s your choice.  But that doesn’t mean that, because you choose not to drive, your right to drive doesn’t exist.  It also doesn’t mean that society must allow you–and only you–the privilege to drive your car at breakneck speeds.

The laws against speeding are far different than, for example, a restriction that prohibits women from voting (while allowing men to vote).  That kind of prohibition does discriminate because it specifically forecloses an entire class of people (women) from exercising a Constitutional right.  Speeding laws, on the other hand, simply restrict a certain kind of behavior that may or may not impact the preferences of certain individuals.

The question, then, is not why homosexuals can’t marry.  They can.  They simply can’t marry someone of the same sex, just like a heterosexual can’t marry someone of the same sex.  The same restriction applies to everyone and to all classes of individuals.

Legal Argument Against Gay Marriage, Part 2: Marriage Is Not A Right

Moreover, marriage itself has never been a right.  It is a contract that the government allows individuals to enter into to bind themselves to certain obligations. 

That contract was conceived of long ago because society has a fundamental interest in preserving and advancing the two traditional objectives of marriage: (1) the formation of the family unit and (2) the procreation, nurturing, and education of children.

Let Democracy Work   

Thus, the more appropriate question is how society views marriage and the purpose of such a union.   

Social perceptions of marriage may change in the future.  Perceptions regarding sex, morality, and relationships change over time, and nothing prevents one group of people from persuading other citizens that its view of such issues is the best and most practical course.  Democracy allows people to engage in these debates and, through the legislative process, improve society. 

This legislative process has already given citizens in many states the ability to determine whether same-sex marriage should be legal.  As a result, over half of U.S. states explicitly ban same-sex marriage (with Florida, California, and Arizona now joining that group).

Until a majority of citizens believes that marriage should be redefined, society will continue to preserve marriage under its current classification (unless one or more unelected judges impose their own views on the democratic majority). 

If homosexuals believe that same-sex marriage is beneficial and/or vital to society and work to persuade others of that view, then the people, at their own pace and over time, can carry that perception to its logical conclusion.

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