As a professor of constitutional law, I expected that Douglas W. Kmiec would have taken an academic approach to his argument against gay marriage. Instead he tells us that “what the founders surely thought was obvious.” What is more likely is that the founders had not even considered marriage between two people of the same sex. They did, however, extol equality for all citizens. Kmiec argues that lawsuits decided against the Boy Scouts of America are good examples of how gay marriage could hurt churches. His argument is off target as the BSA is neither a religion nor an organized church. Whether or not you agree with the BSA position of not allowing gays is beside the point in deciding whether to fund the group with public money, allow it to operate on public land or give it tax-exempt status. As a private, secular group, it is allowed to discriminate, but it must do so with its own money, not the public’s.
Kmiec should realize that our Constitution allows churches to either accept or reject gay marriage as they please. He should also realize that our Constitution provides for equal rights and responsibilities, which include state-recognized marriage, for all U.S. citizens.
