THEODORE B. OLSON: Since 1888 the United States Supreme Court has 14 times decided and articulated that the right to marriage is a fundamental right. We're not talking about a new right here, we're talking about whether a fundamental right — something that the Supreme Court has characterized as the most fundamental relationship we have in this country — can be deprived of certain individuals because of the color of their skin or because of their sexual orientation.As I was saying. And to which needs to be added, "can be deprived of certain individuals because of their religion." I expect most folks would concur that that right cannot be deprived of certain individuals because of the color of their skin or because of their religion.
But sexual/gender orientation is as immutable as skin color,* whereas religion might be abandoned at the drop of a personal epiphany or hallucination. Religious views, much alike any other kind of personal opinion, are as mutable as they come. Ultimately, there is little — if any — empirical support for many religious beliefs at all.
Yet Americans agree that those views — however objectively baseless as they might be — are protected against discrimination when it comes to what U.S. courts have identified as fundamental rights.
If there isn't any rational purpose for denying a fundamental right on the basis of one's religious views, then there certainly can't be any for discriminating against inherent qualities one has no control over.
And even if sexual/gender orientation was as easily modified as religious beliefs,** we may not countenance one discrimination and not the other and still expect to conform with the U.S. Constitution.
"Only marriage between an Orthodox Jew and a Shia Muslim is valid or recognized in California." How long would that Proposition stand?
This is all over but the shouting and as local conservative blogger Jeremy R. Shown somewhat resignedly points out, it's instead time for the "traditional values" crowd to put their own houses in order.
And it's about time that they did. Nobody takes seriously moral lectures on this topic from someone in their third or fourth marriage.
* Go ahead. Make me gay.
** Tellingly, the unsupported notion that sexual/gender orientation might be rejiggered or switched out is itself a religious belief.
See, e.g., Ted Haggard.