Copyright Ó 2004, by Alec Rawls

Homosexuals have a right to tolerance, but not approval. The homosexual push to marriage is about approval, not tolerance. It is just one more example of the extraordinary selfishness of the homosexual movement. Depending entirely on society’s respect for their minority rights (which have been respected, without stint) a great majority of homosexuals (even the Log Cabin Republicans) reciprocate this generosity with sweeping contempt for the rights of the majority.

If you approve of heterosexual marriage, they claim, you must approve of homosexual marriage. If you say that heterosexual marriage is good, you must say that homosexual marriage is good. If you grant special benefits to married men and women to help support the children their unions create, you must grant the same special benefits to homosexual couples, to help the support the children that you must allow them to acquire. It is not enough to allow the minority their rights to favor what they favor. The majority must be barred from its special rights to favor what it favors.

Majorities do have rights that minorities don’t. They have the right to speak for the collectivity. That is democracy. Minorities have rights to be tolerated. Majorities have the right to express collective approval. There is no equal right to approval, only an equal right to be tolerated.

In constitutional terms, the issue is where protections for homosexual behavior originate. They do not originate in the equal protection clause. It is the nature of law to discriminate between approved and disapproved behaviors. So long as discrimination is based on behavior, instead of targeting race or ethnicity, it only needs to be rationally related to a legitimate state interest to pass constitutional muster.

Who can get married, who can adopt children, who can receive the benefits that society tries to funnel towards the raising of children: all of these regulations target behaviors that are rationally related to a state’s legitimate interest in the welfare of children. This makes marriage an allowed subject for discrimination by the majority. The Massachusetts Supreme Court was able to rule against hetero-sexual-only marriage only by claiming that marriage relations are not rationally related to any legitimate state interest, which is blatant judicial malfeasance.

Limits on the power of the majority to discriminate against homosexual behavior kick in only when laws infringe on individual liberty rights. That was the Supreme Court’s basis for striking down the criminalization of homosexual sodomy in  Lawrence v. Texas. It was liberty, not equality, that was being protected.

Limiting marriage to heterosexual couples does not infringe liberty. It does not stop homosexuals from doing what they want together. It just stops them from getting legally enforced support and approval from others. With neither liberty nor equality legitimately at stake, approval or disapproval of homosexual marriage is properly a matter for the majority to decide.

Not only does the equality argument fail, it is never even reached. The target of legal benefits is not adults but children, so disparate impact on adults is irrelevant. Consider the example of programs that distribute aid to families with dependent children (as used to be mandated under the federal Aid to Families with Dependent Children program). Much of the money from this kind of program goes directly into crack pipes and heroin needles. Does that mean childless crack addicts are treated unequally because the government is not paying for their crack too? If you think so, just move to San Francisco, where addicts are on the dole. Eventually we’ll just build a wall around the place and write “loony bin” on it.

Because of homosexual failure to reciprocate respect for rights we now have no alternative but to amend the Constitution. The Constitution’s “full faith and credit” clause (Article IV section 1), means that any breakthrough on homosexual marriage in any of the fifty states will obligate all the other states to accept homosexual marriage. The door is wide open for the minority to trample the majority’s democratic right to decide what it approves. But amending the Constitution presents its own danger to democracy. If the majority in a state want to allow homosexual marriages, without forcing other states to recognize those marriages, that power of approval lies properly within the purview of popular sovereignty. (Say that three times fast, but not too close please.)

The current front runner for a marriage amendment, the Musgrave Amendment, blocks state democratic power. It reads: “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.” Under this amendment, no state majority will have the power to approve of homosexual marriages.

To retain proper democratic purview, a marriage amendment should read something like this: “Each state is required to grant full faith and credit to marriages enacted in other states only if those marriages are between one man (born male) and one woman (born female), or if they are of a form that the state itself enacts. Nothing in the federal Constitution shall be interpreted to require that couples not meeting a state’s definition of marriage are entitled either to marry to receive the legal incidents of marriage.”

It is our morally blind homosexuals who got us into this mess. If they want to get themselves out they had better stop trying to use undemocratic means to impose homosexual marriage and start trying to preserve the democratic possibility of one day securing majority approval for homosexual marriage. If they don’t get behind the proper amendment, they are going to get bowled over by the Musgrave Amendment, and it will be 100% their own damned fault.

Alec Rawls is a contributing editor for The Stanford Review. He is currently writing a book on republicanism. Contact alec@rawls.org.

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