I am upset by his word choice. Not allowing gays to marry does not automatically constitute discrimination. Discrimination would occur if we were prohibiting gay marriage because most of society found it immoral, but if there is government interest to create families, then marriage benefits become an incentive. Exclusion does not always equal discrimination.
If Carney considers this proposed amendment discriminatory, then he has other problems to worry about, because the Constitution already enshrines discrimination. Yes, the Twenty-sixth Amendment is, in fact, full of age discrimination, as it excludes minors from the voting process. However, this is allowed because it is in the government’s interest to have an age restriction. The same should apply to banning gay marriage. Sure, an amendment prohibiting gay marriage would definitely have a disparate impact on homosexuals, but a disparate impact does not amount to discrimination; there are good excuses for causing disparate impacts, like business necessity. The opinion in Grutter v. Bollinger provides an example of “exclusion without discrimination” that liberals may like more than my previous ones. According to the Court, University of Michigan’s affirmative action policy was not discriminatory since, “by enrolling a ‘critical mass’ of underrepresented minority students, the policy [sought] to ensure their ability to contribute to the Law School’s character and to the legal profession.” Excluding non-minority students was thus not discriminatory, as it served a purpose beneficial to the Law School.
On February 22, 2012, District Court Judge Jeffrey White found that the Defense of Marriage Act (DOMA) did not further a compelling government interest and was thus discriminatory, Golinski v. Office of Personnel Management. According to Golinski, a California resident, she was “denied marriage-based federal [health] benefits… in violation of her rights to equal protection.” However, the Court found back in 1996 that, “the Fourteenth Amendment’s promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons,” Romer, 517 U.S. 631. DOMA does exclude homosexuals from access to federal marriage benefits, but it is not discriminatory because, despite Judge White’s assertion that DOMA does not pass heightened scrutiny, it does further a compelling government interest.
The Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives argued the case against Golinski, reasoning that the government has an interest in “defend[ing] the institution of traditional heterosexual marriage,” because “only a man and a woman can beget a child together.” This is why cousins and siblings are not allowed to marry. If the government did not have an interest in regulating the institution, it would not care if relatives married, or if a man married his dog. Marriages between non-relative heterosexual couples are in the state’s interests because they usually lead to families with healthy children. This is why tax exemptions, health insurance, and deceased spouse’s social security benefits are given to married couples; they are carrots.
Judge White fails to see how DOMA promotes the government’s interests, because “denial of recognition and withholding of marital benefits to same-sex couples does nothing to support opposite-sex parenting.” According to Judge White’s logic, if incentives are offered to one group of people then they must be offered to every group. This is poor reasoning, which is why his ruling that DOMA does not further government interests is wrong.
Prohibiting gay marriage does exclude homosexuals from participating in the time-honored tradition of marriage, but since the government uses the institution of marriage as an incentive to procreate and raise children in traditional families, exclusion in this case is not the same as discrimination, because government interests outweigh the “equal protection” granted to citizens by the Fourteenth Amendment.