The facial reason that prohibitions against gay marriage are not discriminatory is that no one, gay or straight, white or black, Christian, atheist, Muslim, Jew, etc. is allowed to marry someone of the same sex. I as a straight man am not able to marry another man – why should a gay man be granted a right that I am not granted? There is no specific class of individuals whose rights are abridged by the law, it is equally applicable to everyone. Of course, the objection made by proponents of gay marriage is that straight people are legally able to marry the individuals they might want, while gay people are unable to do the same.
This objection does seem, at first glance, to have a valid point. Historically, inter-racial marriage was often banned. These bans applied equally to everyone; nobody was allowed to marry outside their race. Then, in 1967, Loving v. Virginia ruled that inter-racial marriage bans were unconstitutional and discriminatory. The Supreme Court held first that marriage is a fundamental right protected by the 14th Amendment. Additionally, the Court correctly accused the state of Virginia of having a racially discriminatory intent in passing the law because the law only stipulated that whites and other races could not marry; it made no restriction on marriage between non-white races i.e. an African American would have been able to marry a Hispanic.
This case is often used by proponents of gay marriage to show that even though a law be universally applied, it can still be discriminatory. This argument fails to be applicable to the gay marriage issue, however, because the question is not one of preventing people of getting married, but of redefining marriage. If marriage is a fundamental human right, then everyone has the right to not be prevented from marrying by the government. This right extends beyond race, a woman is a woman no matter her race and the same is true for men. To discriminate in marriage rights between races cannot be more defensible than preventing marriages of couples with different hair or eye color or of different IQs or socio-economic statuses.
The right to marry, however, is limited by the definition of marriage. It is nonsensical to argue that one’s first amendment right to free speech guarantees one protection from warrantless searches in one’s home or that it guarantees one the right to be heard. A right must be limited to the definition of that right. Gays are legally able to be married anytime they choose – as long as it is to someone of the opposite sex. There is no discrimination. Marriage has always been defined as being between members of the opposite sex. If proponents of gay marriage wish to change that definition, then that is their prerogative. They ought, however, to be open and upfront enough to claim that as their aim, rather than setting up the red herring of “discrimination.”
If the definition of marriage is changed (if that is even possible), perhaps through a constitutional amendment declaring that marriage laws may not discriminate between sex or sexual orientation, then, and only then, will it become discriminatory to prevent gay marriages. Again, gay marriage is not a legal question, but a philosophical one. Just as it is not a legal question of discrimination that only women are able to give birth, so it is not a legal question (yet) that only people of the same gender are able to get married. It will not become a legal question until the philosophic definition of marriage is changed. Once again, marriage being between members of opposite sex, may be so deeply engrained into certain nations/cultures that gay marriage never becomes a legal question.
Finally, one must remember that even straight people have some restrictions on whom they may marry. They definitely are not able to marry their immediate family, and some states do not even allow first cousins to marry. Also, individuals are not permitted to marry more than one individual. The government is then able to place parameters narrowing the philosophic understanding of marriage (opposite sex individuals) but is not easily or simply able to change or expand upon that philosophic understanding. The philosophic understanding, if at all changeable, of the definition of marriage rests ultimately with the people.
