Kentucky Gov. Steve Beshear’s administration filed an amicus brief with the supreme court on March 27th arguing the state’s ban on same-sex marriage isn’t discriminatory because it applies to straight people, too.
The brief has this to say:
Kentucky’s marriage laws treat homosexuals and heterosexuals the same and are facially neutral. Men and women, whether heterosexual or homosexual, are free to marry persons of the opposite sex under Kentucky law, and men and women, whether heterosexual or homosexual, cannot marry persons of the same sex under Kentucky law.
He makes the argument using a curious interpretation of the 14th amendment’s equal protection clause, arguing that since the ban applies to everyone equally it’s not a violation of the said clause.
If Christians opposed to gay marriage, like Beshear, want to understand the problem with this argument I’d suggest that they imagine a scenario in which the federal government has made attending Christian churches illegal. They would protest that they have freedom of religion, but the government points out that the law is applied equally, after all it’s not just Christians who are prevented from attending Christian churches, the law applies to everyone equally, and you everyone is free to attend a Muslim mosque or church of scientology so there is no violation of the 14th amendment.
How well do you think this argument would go over with those opposed to gay marriage? Not very well I suspect. The reason should be obvious, while equal application of the law is necessary to guarantee equality, it is not sufficient on it’s own to guarantee it. The thing is they should already know this, if they really thought equal application of the law was sufficient for equality they wouldn’t have fought the ACA’s contraception mandate. Yet this terrible legal argument keeps showing up from people who ought to know better.