What is the scariest part about
Bush’s support for a constitutional amendment that would ban
gay marriage? Is it that it would outlaw a benign practice that
even moderate conservatives are slowly but surely beginning to
embrace? Is it that his outward support is a sign of his deep roots
in the fanatical, fundamentalist Christian base? Actually, the
worst part is that the passage of this amendment would further
erode the argument that the privacy of the individual citizen is a
constitutional right.

Ari Paul

Privacy isn’t a constitutional right? That’s
impossible; this is America for Pete’s sake. It is an age-old
debate in the U.S. Supreme Court. Conservatives in the court argue
that because the constitution does not say outright that privacy is
a right, Americans are not entitled to it. Liberals have
interpreted that because the first, third, fourth, fifth and
arguably the second amendments are designed to protect the rights
of the individual, and because the ninth amendment states,
“the enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the
people,” then the Constitution implies a right of
privacy.

To be perfectly blunt, Americans are entitled to a right of
privacy from the government, not only due to the aforementioned
rationale, but because privacy is a part of America’s
founding ideology. Thomas Jefferson famously stated, “Law is
often but the tyrant’s will, and always so when it violates
the right of an individual,” knowing that giving permission
to the state apparatus to poke its head in at its own will into the
lives of private citizens was contradictory to the concept of
libertarian democracy.

In short, privacy rights are not only embedded within the listed
rights of the Constitution, but the concept of protecting the
individual citizen was the stated goal of the first generation of
American patriots.

Bush’s proposed amendment, if passed, will give the
anti-American, anti-privacy bloc in the judiciary (most notoriously
the outspoken homophobe Justice Scalia and the alleged sex-offender
Justice Thomas) constitutional precedent that disallows privacy,
because issues of gay marriages are historically rooted in the
belief that privacy is, in fact, a constitutional right. If there
is an anti-gay marriage amendment, there will be added language to
the Constitution that anti-privacy activist judges can exploit to
tear away at other numerous rights Americans enjoy.

For example, Bush would have one more constitutional hammer to
pound away at Roe v. Wade, as it was upheld by the court under the
assumption that privacy was, indeed, a constitutional right, and
that under such a right, a woman has a right over her own body. The
intrusive aspects of the U.S. Patriot Act could be vindicated by
the courts, thus making an Orwellian government more acceptable to
the contours of the constitutional framework.

The American Civil Liberties Union announced in a statement last
week “that the measure as written is fundamentally at odds
with basic principles of federalism and state authority, which has
made the amendment a wedge issue even among conservatives.”
Former U.S. Rep. Bob Barr (R-Ga.), one of the most extreme anti-gay
rights members of the conservative legislative faction, has
publicly voiced his opposition to the federal government defining
marriage and said that those decisions should be left to the people
of each state. After all, don’t conservatives believe in
limiting the federal government’s power over the states and
the individual? Obviously, this Republican president wants to
betray this seemingly libertarian-minded political tradition.
Fortune magazine noted last month that since “(Bush) took
office, the record budget surpluses built up during the Clinton
administration have turned to record red ink, and government
spending has expanded at its fastest clip in 40 years.” Along
with being the biggest spending president, his build-up of homeland
security and now his vision to put the federal government in our
bedrooms means that he has created the so-called “big
government” that conservatives say they stand against.

It does not matter if you vote Democrat, Republican, Green, or
other. Unless you read 1984 and thought Big Brother was cool or you
choose to spit on the graves of Tom Paine and Thomas Jefferson,
this concept of losing privacy rights should make any
freedom-loving American shudder with fear.

So even if you feel on the fence about the idea of gay marriage,
even if you feel that civil unions are a legitimate compromise for
same- sex couples, keep in mind Bush’s proposed anti-gay
rights amendment is constitutional ammunition for those who want to
take away the liberty our forefathers fought for and your
protection as a private citizen.

Paul can be reached at
“mailto:aspaul@umich.edu”>aspaul@umich.edu.

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