Equal Protection Under the Law

Is not being able to marry someone of the same sex a denial of equal protection under the law? That is the claim of the same-sex marriage advocates. Homosexuals are denied equal protection under the law and are therefore treated as second-class citizens because they cannot marry whomever they want.

Equal Protection under the Law is an explicit appeal to the Equal Protection Clause of the Constitution's Fourteenth Amendment:

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (emphasis mine)

The first thing to notice is that the Fourteenth Amendment explicitly mentions persons. As Constitutional scholar John Eidsmoe has stated,

"equal protection" means that persons similarly situated are to receive equal treatment.

Let us suppose that A, having completed his undergraduate work with a D- average and a score of 127 on his LSAT (Law School Admission Test), sought admission to a state law school, as did B with a 4.0 average and an LSAT of 750. If B were admitted to law school and A was rejected, A would not have a basis for complaining that he had been denied the "equal protection of the laws." Why not? Because there was a rational reason for choosing B and rejecting A: his superior grade point, and his superior aptitude scores.

In other words, equal protection clause does not prohibit all discrimination. It prohibits only discrimination that lacks a rational basis. Had A been rejected because of his race, he would have a basis for complaint, because race is not a valid basis for discrimination. Had A been rejected because of his religion, A again would have valid basis for claiming denial of equal protection by a state institution. But A could not claim denial of equal protection of the laws if there was a valid or rational basis for choosing B and not choosing A.[1]

So the equal protection clause pertains only to individuals not to relationships. If it applied to relationships then practicioners of polygamy and polyamory could also claim they are being treated as second class citizens. Yet, these are relationships in which same-sex marriage advocates overwhelmingly (it's not even close) refuse to allow the equal protection under the law.

Homosexuals are quick to say that sexual orientation is no different than race and therefore is not a valid basis of discrimination. They claim homosexuals are born that way. What way? They are born with a sexual desire for the same sex. The unstated truth is that they are also born with the sexual organs for the opposite sex. This fact is ignored because it reveals the inherent contradiction with which homosexuals are born.

They uphold the subjective feelings while ignoring the objective physical part of their nature. Yet, skin color is an objective characteristic of our human nature. Claiming sexual orientation is the same as race is to say a subjective (by definition, one that can only be confirmed by the subject) characteristic of our human nature is the same as an objective characteristic such as skin color while ignoring the objective characteristic of gender.

Therefore homosexuals, as individual citizens, are similarly situated in regards to marriage in that they have every right as every other citizen to enter into a marital relationship as long as they adhere to the same criteria as every other citizen is obligated to follow: marry someone of the opposite sex.

In demanding the opportunity to marry someone of the same sex, same-sex marriage advocates attempt to redefine the Fourteenth Amendment from protection for persons to protection for relationships.

Clearly, every relationship is not similarly situated. Same-sex marriage advocates implicitly concede this fact every time they refuse equal protection to polygamy and polyamory .

[1] John Eidsmoe, "The Christian Legal Advisor, Baker Book House: 1984, p.173.