Despite what anyone may think or how strongly they feel about the idea of gay marriage, it is an abominable premise to think that amending the Constitution to reduce the rights of any class of people is an acceptable answer. The Constitution embodies and enshrines the principle of equal protection and due process under the law. To amend it in such a way is to violate those very principles and the spirit of our founding fathers.
I certainly will not claim that this is the first time the idea has been brought to the forefront of American thinking. History has taught us that reducing rights through the Constitution is never successful. To understand that idea you need only look at how well Prohibition worked. It will forever be remembered as a miserable failure — an attempt to strip away the rights of the people to whom this country belongs and to whom the government ultimately answers.
Our Constitution was designed to protect the rights of the minority from the tyranny of the majority. How then could it be changed in a way designed to suppress the minority?
Perhaps I am the only American who remembers early civics classes when one learned of the US Constitution and what it said and what it meant. Perhaps I am the only American who chooses to remember. The joke these days is that we Americans no longer need our Constitution because so many of the rights and protections it affords us have been taken away in the name of security, but amending the Constitution in such a way so as to deny a class of people the right to marry is an unconscionable crime. I take personal offense at the very idea that we might somehow modify that holiest of American documents so as to suppress the rights of any class of American citizens.
Even more offensive an idea is that the Constitution be amended to reduce the rights of any American citizen because of a solely religious moral conviction.
It is important to understand the constitutional protections which specifically disallow such an idea on the federal or state levels.
Those who proclaim the "equal protection clause" as a reason to proscribe an amendment to the Constitution do not understand what the equal protection clause of the fourteenth amendment really means.
Section one of amendment fourteen specifically says that no state shall "deny to any person within its jurisdiction the equal protection of the laws." It does not, however, apply to federal law or the US Constitution.
Under the premise of the equal protection clause no state may enact a law which denies any person within its jurisdiction the equal protection of the laws. In other words, the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances. Generally, the question of whether the equal protection clause has been violated arises when a state grants a particular class of individuals the right to engage in activity yet denies other individuals the same right.
The equal protection clause is not intended to provide "equality" among individuals or classes but only "equal application" of the laws. The result, therefore, of a law is not relevant so long as there is no discrimination in its application. This means that no law can be created which targets a specific class of people — it must instead be applied to all people equally.
This is the constitutional protection which will ultimately be the downfall of every state constitutional amendment prohibiting gay marriage. Under existing state law couples are allowed to marry and are provided the state and federal protections of that legal recognition. Any ban on gay marriage violates the existing law and, therefore, violates the equal protection clause of the Constitution.
Equal protection will not block the constitutional subversion an anti-gay marriage amendment would represent at the federal level.
The fourteenth amendment is, by its very terms, not applicable to the federal government. That means it also does not apply to the Constitution.
What does apply to the Constitution is the Constitution itself, including the fifth amendment.
The fifth amendment guarantees that no person under the jurisdiction of the United States shall "be deprived of life, liberty, or property, without due process of law." "Due process" in this context has been interpreted as binding the federal government with a number of other express provisions in the Bill of Rights guaranteeing fair procedure and non-arbitrary action. This interpretation is based on the original usage of the phrase in chapter 39 of the Magna Carta and its subsequent usage throughout the development of the American republic.
Because of the similarities between the fifth and fourteenth amendments, some fourteenth amendment interpretations have been carried back to broaden interpretations of the fifth amendment's due process clause, such as the development of equal protection standards as an aspect of fifth amendment due process.
It is this protection, which we all enjoy, that should ensure that any attempt to amend the Constitution with explicit discrimination fails.
As we have all enjoyed the protections of both the fifth and fourteenth amendments, how is it then that any American could consider defiling them by attempting to ingrain in the Constitution any discriminatory rule? Is it to be assumed that equal protection and due process are guaranteed only to the vocal majority and that the minority is not afforded these same rights?
The Constitution is the embodiment of protection, of guaranteed rights. It is the foundation upon which America is based and stands to empower and protect the people.
It should therefore never be used to subvert its very meaning and desecrate the meaning of the Constitution. This abhorrent idea is the very crux of hypocrisy when people want the protections of the Constitution only until they disagree with someone who also wants those protections.
The US Constitution is a document to be protected from such savagery. It is to always grant rights and protections and is never to be used to subjugate any person or class of people. Am I the only one who believes that through and through and who is wise enough to realize the Constitution itself prohibits such actions?