The Constitutional Case For Gay Marriage

by Michael Jones · 2010-01-07 16:31:00 UTC
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ConstitutionWhat's the number one reason we should have gay marriage? It's not moral, political, or even civil rights related. It's constitutional. That's one of the factors driving a federal court case challenging gay marriage bans, moving forward in California next week. But the issue extends far beyond the Golden State.

In fact, if Thomas Jefferson were around today, the chairman of the Cato Institute says that he'd likely be in favor of gay marriage. Why? Because the principles behind legal gay marriage are on full display in the Declaration of Independence.

"Thomas Jefferson set the stage in the Declaration of Independence: '[T]o secure these Rights, Governments are instituted among Men,'" writes Robert Levy, who has chaired the Cato Institute for the past two years. "The primary purpose of government is to safeguard individual rights and prevent some persons from harming others. Heterosexuals should not be treated preferentially when the state carries out that role. And no one is harmed by the union of two consenting gay people."

The nation's founding documents support gay marriage? Sure do. Now if that meme can just get out to a few state legislatures (here's looking at you, New Jersey), we'd be set.

The constitutional case for gay marriage is exactly the case being made by Ted Olson and David Boies, the two lawyers challenging California's ban on gay marriage, otherwise known as Proposition 8. Boies wrote two months ago that both the Constitution -- not to mention U.S. Supreme Court precedent -- show that gays and lesbians should have the right to marry.

"People's personal views of the appropriateness of same-sex relationships naturally influence their views of our lawsuit," Boies wrote. "However, it is important to remember that the legal question does not, and under our Constitution cannot, depend on people's personal preferences."

In other words, if you combine Thomas Jefferson, mix in all the rest of our Founding Fathers (and mothers), and add in the U.S. Supreme Court, you get a collective body of work that says one simple thing: there should be no limitations on the right to marry.

Photo: U.S. Sen. Mike Crapo

Michael Jones is a Change.org Editor. He has worked in the field of human rights communications for a decade, most recently for Harvard Law School.
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