On Equal Protection
In President Bush’s weekly radio address he again made clear his support of amending the constitution to insure that discrimination can’t be stopped by “activist judges.”
In his speech, he invoked America’s legacy of freedom to justify this amendment: “In our free society, people have the right to choose how they live their lives. And in a free society, decisions about such a fundamental social institution as marriage should be made by the people — not by the courts.” In short, he is saying that “we are a free country, and as such the majority is free to discriminate against whomever they want, for whatever reason they want, provided they are a minority.”
According to Bush, if the courts rule that the Gay people are entitled to the protections of the 14th amendment (you know, the one that ensures everyone is guaranteed equal protection under the law), then those judges must be “activist judges.” This logic is fundamentally flawed, as the very nature of a constitutional democracy is that laws are only valid if they are in line with our Constitution. These judges are responsible for making that decision, and while Bush may disagree with them, that doesn’t make them “Activists” unless they are making decisions without any legal basis. The 14th amendment being violated word for word is one heck of a legal basis.
George later in the speech said: “An amendment to the Constitution is necessary because activist courts have left our Nation with no other choice.” So George is saying, “If banning Gay marriage is unconstitutional; let’s change the Constitution so it won’t be.” If this amendment goes through, then it would be the first constitutional amendment to actually limit people’s freedom. How people can come to terms with that is beyond me, but apparently some have.
Imagine what would have happened if this had been done after the Supreme Court ruled on Brown v. Board of Education, which legally ended Segregation on the grounds that it was not equal protection under the law (as guaranteed under the 14th amendment). The Constitution would have just been changed to ensure that Segregation would be stopped. Segregation would still be the law of the land in the south, and anywhere else that could drum up enough votes to pass a statute that could under penalty of law, force other people to live as secondary citizens.
While some may say, “well, segregation is different,” I don’t believe it is from a legal or philosophical perspective. People are not able to live their lives freely because the Government is restricting their rights because they are a minority. As straight people can marry, and homosexuals cannot, they are by definition not receiving equal protection under the law, and that is at its face counter to the ethos that this country was founded on.
America is not a populist country, we are a nation of laws, our highest law is the Constitution which guarantees equal protection under the law – it guarantees equality; the only way to constitutionally prevent same-sex marriage is to remove that guarantee of equality. Make no mistake, however it is worded, that is exactly what it will be doing, removing the guarantee of equality from our Supreme Law, and at the same time, getting rid of the Constitutional Protection that allowed segregation to end. It is also setting precedent for other prejudices to be tolerated.
As George W. Bush said in this address, “In our free society, people have the right to choose how they live their lives.” This is true, and the government should not interfere with free people living their lives simply because they are a minority.