GAY MARRIAGE RIGHTS

The following made "Correspondent of the Day" at the Richmond (Va.) Times-Dispatch on March 26, 2014.

I have recently seen a lot of indignant Letters to the Editor angrily declaring that there is no such right in the Constitution for gay marriage.

It is true there is no specific reference to a "right" to gay marriage in the Constitution, but as with other implicit "rights," (1) there is no specific prohibition against it, (2) there is no compelling legal reason against it, and (3) there IS a constitutional right to "equal protection of the laws" across the board, regardless of what some English translation of the Book of Leviticus may say.

Contrary to the beliefs of most people, the Constitution does not operate as a bundle of specific rights from a benevolent government.  A majority is not allowed unfettered power, even in a "democracy."  Too many politicians and judges have incorrectly promoted this view, but constitutions actually operate as bundles of specific, limited POWERS granted to governments (or not).  As the 10th Amendment makes clear, if the US Constitution does not specifically authorize the US government to do something, then it is (or should be) PROHIBITED, regardless of what a mere majority may want!  State constitutions work the same way.  Constitutions do not constitute blank checks of power for governments.

Any government (federal, state or local) simply cannot treat gay people (nor anyone) differently UNLESS the applicable constitution specifically authorizes it.  In other words, all people in the US should be free to do as they damned well please unless a constitution specifically permits a government to interfere or to discriminate.  A state or local government is simply powerless to deny a civil marriage license to anyone UNLESS there is a specific constitutional provision thus allowing such discrimination or there is some legally compelling reason (like preventing incest) for a government to otherwise act in a discriminatory way.

It's really hard to see such things clearly, looking through the wrong end of the constitutional telescope.