The Right Question

I was going just to edit my post from yesterday on the marriage amendment, but decided that there is an important issue here that needs to be highlighted.

Too many judges, particularly those who call themselves "strict constructionists" (which means they only get activist if it will suit the right wing), have insisted that there is no constitutional right to homosexual behavior, including same-sex marriage. Under that doctrine, there is no constitutional right to any sort of behavior. They're asking the wrong question. And they're not even coming up with the right answer.

The whole point of the Bill of Rights is not that it "grants rights" to the people (which, given the idea that "all men are endowed with certain inalienable rights" from the get-go, is certainly a ridiculous proposition to begin with), but that it limits what restrictions the government may impose on the behavior of the people and under what circumstances. The Ninth Amendment does, in fact, quite plainly state that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." There it is, in the plain language so beloved of the strict constructionists. (Note to Justice Scalia: Duh!)

So the correct approach to the question of same-sex marriage is not whether the US Constitution (or any state constitution) specifically grants such a right, but whether any government has the authority to deny it. Considering that the Supreme Court has found that marriage to the partner of one's choice is a fundamental right (and considering the Court's attitude toward government instrusion into personal decisions in general, going all the way back to Griswold, as well as the Court's insistence on a rational basis for legislating against a specific group), it seems that opponents of SSM are on shaky ground. (Of course, this also makes the recent New York and Washington decisions even more ludicrous.)

Which puts Judge Wilkinson's reservations on gayhood (did I just make up a word?) even further in limbo. And leaves the "strict constructionists" looking like the political hacks they are.