Advocacy Requires No Endorsement

On Friday, a person very close to me called to discuss the Bourke v. Beshear decision. Though the call was generally supportive, this person made sure to tell me that they "didn't support the lifestyle" of our homosexual clients, even though they felt the constitutional argument in our case was correct.

That disclaimer, which probably felt necessary to the caller, reminded me that other people may misunderstand the purpose of the legal fight against discriminatory marriage laws like those in Kentucky. Attorney advocacy and legal arguments may seem like personal endorsements of beliefs or "lifestyles" which many people find confusing or offensive. While some attorneys obviously take up causes they personally believe in, the underlying nature of their advocacy doesn't change.

The U.S. Constitution protects important freedoms for all Americans. The First Amendment, for example, protects everyone's freedoms of speech and religious belief. Those freedoms mean some people will say things or believe things that other people find offensive. Some speech and beliefs are so unpopular that only tiny minorities will ever embrace them.

An excellent example is the Ku Klux Klan. An underground group composed primarily of white men, the KKK has been a reliable source of divisive racial rhetoric for decades. The majority of Americans find the KKK's words and beliefs to be deeply offensive, if not dangerous. However, the First Amendment protects the members of the KKK in the same way that it protects everyone else. No matter how offensive, no matter how disturbing, the mere words and beliefs of hate groups like the Klan are outside the realm of government control.

Another, more prominent example would be Westboro Baptist Church. Infamous for protesting the funerals of U.S. service members killed in war, Westboro members are frequently seen on street corners with signs proclaiming "GOD HATES FAGS" and "THANK GOD FOR DEAD SOLDIERS." Without a doubt, American society would be better off if Westboro protesters weren't around, spreading their hateful message. But the First Amendment, which protects you and me, protects them as well.

As fellow citizens, we often obsess over our differences; we focus on the disparate content of our speech, of our beliefs, and of our private lives. Heterosexuals worry that homosexuals will somehow convert their children into a sinister "lifestyle" of sin and immorality. Christians suspect shadowy infiltration of government and social life by Muslim interlopers bent on installing a Shariah legal framework. Wealthy capitalists see a new Bolshevik Revolution any time someone proposes to restructure the economy to increase wages or provide more benefits.

From a constitutional perspective, all of these worries, accusations, and suspicions are mere distractions. What matters is the underlying principle: all are entitled to believe and say whatever they want. Short of causing actual harm or a real threat of imminent harm, all Americans are free to determine for themselves what they want to say, what they want to believe, and who they choose to associate with.

The freedom that Muslims enjoy when they kneel for daily prayers is the same freedom that Christians enjoy when they dress up and go to church on Sundays. The freedom Westboro Baptist Church enjoys when it screams hate in the faces of funeral mourners is the same freedom that Tom Perkins enjoys when he smugly suggests that rich people like him should get more votes. The freedom heterosexuals enjoy when they casually enter the county clerk's office to obtain a marriage license is the same freedom homosexual couples now seek. In these examples, none of these people exploit any kind of "special" rights. The U.S. Constitution protects each of them identically.

The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation, and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.

Railway Express Agency v. New York, 336 U. S. 106, 112-113 (1949) (Jackson, J., concurring).

The legal battle for marriage equality isn't about private sexual behavior. It's not about the "lifestyle" of homosexuality. Attorneys for same-sex couples don't endorse the intimate details of their clients' lives any more than attorneys for the KKK endorse their clients' hateful beliefs. Advocating for someone's constitutional rights requires no concern for details such as these.

The legal battle for marriage equality is about self-determination. It's about the right of all Americans to decide for themselves how they will live their lives, free of interference from their fellow citizens and their government. It's about securing "the Blessings of Liberty" for everyone as promised by the Constitution. This principle protects everyone identically, no matter how popular or unpopular their beliefs, words, or intimate behavior may be.

While our democracy incorporates and elevates the will of the majority, it must allow even the most unpopular groups to live free of interference. Those now comfortably in the majority should be mindful and protective of the rights of minorities to self-determine. After all, a majority today could easily be a minority tomorrow, and find themselves the target of hatred and oppression from which they, too, will seek protection. Will those protections, built into the Constitution and enforced by the courts, still be in place when they need them? Or will they have been dismantled at the hands of a majority which may no longer exist and whose members may someday fear for their very survival?