Gay is Not a Race

Are All Behavioral Attributes Protected for Equal Protection Purposes?



Let's set aside the morality question regarding gayness. Let's just assume, arguendo something I don't believe but let's just assume arguendo (for the sake of argument) that being actively gay is not aberational or immoral. (Married gay lets assume presumes an active gay state, not a repressed or unexercised state) Let's assume it is a state of being coupled with behavior action without moral consequence or judgment. I don't believe that because I believe the bible is the inspired word of God and it is pretty clear that gayness is both abberational and morally incorrect. See, just by way of one example

Romans 1;20-30-

http://bible.cc/romans/1-24.htm

and the many verses (get your concordance) on lust of the flesh, fornication, etc, not to mention those sodomites for whom the town was named who define 'fire and brimstone' wrath of God pouring from heaven- and if you so much as look back you dissolve into a pile of salt. He isn't kidding.

So does equal protection really protect every one's access to any fundamental right (which marriage is) regardless of what their behavior is? Here one treds lightly making analogies because it invites the obvious attack of 'are you saying Gay is like being.......!!!"- hysteria.
I will venture anyway with the caveat that No- I am not saying being gay is like anything I will below describe or analogize- but note that what is similar is that these are behavioral attributes/actions and the similarity ends there-just to make a point.
Is there, for example, an equal protection right of anyone who wishes to marry if they are of a class of people who tie shoe bombs to their laces during a wedding ceremony because they believe if you martyr yourself during your wedding you go to heaven and are given 7 vestal virgins? (I am reminded of the comic who once said-that takes a lot of faith because I can't find one on earth!)
Is there an equal protection right of anyone who wishes to marry if they believe to consummate the marriage they must first both have sex with a five year old.
Is there an equal protection right of anyone who wishes to marry if their religion maintains that within the first month after the marriage someone take a knife and excise the child from a pregnant woman and sacrifice it to Zeus.

No, obviously there are strong over-riding public safety reasons that would deny equal protection status and deny the right to marriage of those persons- notwithstanding they are citizens. We do not allow citizens to do whatever they want all the time even when fundamental rights are involved. We allow rights to be overridden and overruled when there is a compelling state interest to do so-. A lower standard of constitutional scrutiny is basically "rational"-is there even a 'rational' state interest(s) in denying marriage to people who wish to engage in those attributes. The California judge said -no-. Was that bad lawyering or is there none? Is there really no 'rational' state interest in denying gay people the full status and recognition in a marriage?

So the question then reverts to what is the 'rational' state interest- what is the 'harm' done by the behavioral actions of active gayness.

This question it seems is impossible to address without examining the various moral beliefs regarding this.
So while I set aside the morality question at the beginning, we are confronted with it again. It seems unavoidable. Because you cannot ignore the morality question if you comprehensively address what 'rational' or compelling state interest there may be in denying equal protection rights. Whose morality should count and why?

Here is why the Supreme Court, if it gets the California Marriage Law ruling from the Ninth Circuit and the Ninth Circuit should be allowed to entertain Amicus Briefs from serious theologians of all spiritual disciplines on what damage might or might not ensue with respect to gay active behavior given full social blessing.

Clearly it was such a taboo to the bible believing quoting founders that it isn't something that even would cross their mind that one day gay marriage would be deemed a constitutional right- it was then considered socially a depraved perversity of the most heinous kind. "Original Intent" doesn't help the recent ruling. Under the evolving fluidity that some impute into constitutional interpretation, should society evolve into an understanding of 'equal justice' or 'equal protection' under the laws to give this particular behavioral attribute
equal protection status or is there something foul about that?

I draw no conclusions but just point out that those with the clear biblical morality on the court will likely predictably view this through their morality and the standard 5-4 will likely cabosh the whole thing so don't buy your plane tickets to tahiti for the honeymoon just yet.

Morality is something subtextually undergirding all law- it is unavoidable. It is a question of whose morality controls. And Arnold is, I imagine, in a spot of trouble with the Vatican.

postscript
Morality isn't a dirty word. Generally it is the path to the highest good. It is a gift of a roadmap for growth and preservation of the soul and society. It is ignored at peril. It is there for safety.