In the New York Times article, President Obama Evolves on Gay Marriage, Again, Obama is quoted as saying, “Ultimately, I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states."
The Equal Protection Clause is found in the 14th Amendment, and reads:
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.
There are two problems with his thinking.
The first is, the traditional view of marriage is not something implemented like the “Jim Crow” laws of the South with the intention of preventing people with same sex attraction from exercising their rights under the law. It was recognized, even in societies that did not disapprove of homosexual acts, the understanding of marriage was that of one man and one woman in a relationship intended for the raising of a family. Laws passed to defend that understanding of marriage were not depriving people of a right to marry. It merely insisted on defining the common understanding of marriage in the face of judicial activism.
So these laws defending the traditional marriage are not restricting. They’re merely defining the law in the face of the argument from silence fallacy used by judges (the law doesn’t specifically say between a man and a woman so it must be OK!) in abuse of logic and law—clarifying what was originally meant from a lawyer or judge who abuses the system.
The second problem is, we can apply a reductio ad absurdum to his argument. If forbidding a certain type of sexuality from being practiced with public sanction is a violation of equal protection, then any other law which forbids other sexualities from being practiced also violates the equal protection clause of the Constitution. That means that the State can have no say in passing laws forbidding incest between consenting partners, polygamy, bestiality (we don’t require people to get permission to get milk, meat or wool from farm animals, so why require them to get permission for sexual activity?), necrophilia (if an unborn child doesn’t have rights, neither do dead people) or pedophilia (hey, it was practiced in ancient Greece).
All of those sexual behaviors are considered offensive, so I’ll cut off the list here. Curiously, if one mentions these, activists for same sex couples get outraged that people are “equating” these behaviors with same sex relationships. But that’s the point. These advocates recognize there is a line they will not go beyond. So the question remains, why draw the line here and not there?
The thing is, once you remove family from the equation of what marriage means, you no longer have any lines to draw. Someone who tolerates more than you will want the law to permit something you do not think it should.
So the President has a flawed view of things. He thinks a law is discriminatory if it defines marriage as between a man and a woman, and he thinks that it is not discriminatory if it forbids other things. Basically he’s saying that, in his opinion, there’s nothing with calling same sex relationships, “marriage."
But he has no logical or rational justification for doing so. He can only use the law like a club to force acceptance . . . which is another fallacy.