A U.S. District Court has overturned California’s Proposition 8 (the prohibition of same-sex marriage), which, says the court, violates both the Due Process and Equal Protection clauses of the Fourteenth Amendment. I am very happy to hear that the courts are open to overturning legislation that violates the Fourteenth Amendment. Next up, Title VII of the 1964 Civil Rights Act!
The issues are pretty much identical. Here is the District Court’s reasoning in the California case (this is the Court’s summary of the plaintiffs’ position, which the Court endorses):
The Due Process Clause provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.”…
The freedom to marry the person of one’s choice is a fundamental right protected by the Due Process Clause and…Proposition 8
violates this fundamental right because: 1. It prevents each plaintiff from marrying the person of his or her choice; 2. The choice of a marriage partner is sheltered by the Fourteenth Amendment from the state’s unwarranted usurpation of that choice…The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” US Const Amend XIV, § 1…Proposition 8 violates the Equal Protection Clause because it: 1. Discriminates against gay men and lesbians by denying them a right to marry the person of their choice whereas heterosexual men and women may do so freely; and 2. Disadvantages a suspect class in preventing only gay men and lesbians, not heterosexuals, from marrying.
For the record, Prop. 8 does not prevent gay men and lesbians from marrying. All it does is restrict them to marrying people they’d prefer not to marry. With that in mind, it should now be very easy to write the forthcoming Title VII decision. All that’s necessary is to alter a phrase here and there:
The Due Process Clause provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.”…
The freedom to hire the person of one’s choice is a fundamental right protected by the Due Process Clause and … Title VII
violates this fundamental right because: 1. It prevents each plaintiff from hiring the person of his or her choice; 2. The choice of an employee is sheltered by the Fourteenth Amendment from the state’s unwarranted usurpation of that choice…The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” US Const Amend XIV, § 1. According to plaintiffs, Title VII violates the Equal Protection Clause because it: 1. Discriminates against bigots by denying them a right to hire the person of their choice whereas non-bigots may do so freely; and 2. Disadvantages a suspect class in preventing only bigots, not non-bigots, from hiring.
(In fact Title VII does not prevent bigots from hiring any more than Prop 8 prevents homosexuals from marrying, but I’m trying to maintain a strictly parallel structure here.)
Of course Title VII interferes with the hiring decisions of many people who are not bigots, but on the Prop 8 precedent, the effect on bigots should be sufficient to invalidate the law.
Also of course, bigots are held in considerably greater disregard than homosexuals, at least in the circles that I prefer to travel in. But equally of course, the Fourteenth Amendment is designed specifically to protect the rights of people who are held in great disregard.
Please note the term fundamental is not an assertion but an interpretation of law.
“Fundamental” rights are typically defined as those that are rooted in our nation’s history and implied in the concept of ordered liberty, and the courts have generally recognized these as the rights to vote, criminal process, privacy, and autonomy, and the 1st amendment guarantees of speech, travel, religion, and association.
I suppose the court could make a case that marriage is like autonomy and therefore a “fundamental” right but economic rights such as hiring have typically been held to be non-fundamental.
Though if you then say that who you hire is exactly like association, and therefore fundamental, then I would agree with you. But the Supremes haven’t seen it that way.
PS please post more Godel and Grothendiek stuff. I understand Godel’s theorem but not the universes stuff, and I really want to.
PS similarly a suspect class is one that has been historically subject to injustice (race, alienage, nationality). Marital status and legitimacy are quasi-suspect classes. Arguing that sexual orientation is a suspect class is itself suspect, but certainly racists or bigots have never been held to be a suspect or a quasi-suspect class.
In general, I wish that the debate on gay marriage and equal protection was more nuanced and thoughtful. As you point out, none of these laws are preventing a person from marrying a person of the opposite gender. If the fundamental right is “the right to marry a member of the opposite sex,” then this right is protected regardless of whether gay marriage is legal. However, if the fundamental right is “the right to marry the person you care about most,” then there is clearly not equal protection. It’s a bit of a sticky situation to argue that the fundamental right is the latter, since this would also imply that people should be allowed to marry relatives, children, whatever. I do think that a ban on gay marriage is heartless and uncalled for, but it’s not clear what the clearest and most convincing argument on the matter is.
“It’s a bit of a sticky situation to argue that the fundamental right is the latter, since this would also imply that people should be allowed to marry relatives, children, whatever”
I’m suspect of this reasoning. I think it makes this far more complicated than it needs to be.
We have laws against marrying certain relatives, children, and many of what you must be thinking of when you say “whatever”. But where the law allows a person to be married, anyone should be aloud to marry that person.
If it is legal for Steven to marry you, it should be legal for Evlyn to marry you. If it is not, then we have two sets of laws for two sets of people.
The discrimination is not based on who a person may marry, there are many legitimate reasons to limit who may be married. A law that makes it a crime to marry a goat, makes it a crime for everyone to marry a goat. You cannot make it a crime only for men to marry a goat. That would be discrimination on the basis of gender.
Yes, you could say that hiring/firing restrictions are an infringement on “liberty”, but it depends *entirely* on whether you *define* “liberty” to include hiring/firing decisions.
That’s why I think many libertarian arguments are not convincing to outsiders — if you accept their axioms, then you’ll already agree, otherwise, you won’t.
A more convincing argument is something that starts with premises that you think the reader would agree with, and proceeds by reasoning steps that you think the reader would also agree with, to arrive at a conclusion that would not have been obvious at the outset — but, that if the reader accepts the premises and the reasoning steps, they should at least tentatively accept the conclusion. Your argument about deflation was a good example of that. This is not :)
Of course, even though I support the judge’s decision, his reasoning wasn’t any more airtight. He decided that the restrictions on marriage violated “liberty” because he defined “liberty” to include the right to marry whomever you want.
The judge gave a nuanced decision, and quoting the blunt
instrument portion of it and applying it elsewhere just
doesn’t work. The full text can be found at.
http://www.sfgate.com/chronicle/acrobat/2010/08/04/Prop-8-Ruling-FINAL.pdf
The main point is, “Proposition 8 cannot withstand any level of
scrutiny under the Equal Protection Clause, as excluding same-
sex couples from marriage is simply not rationally related to
a legitimate state interest.”
Note also, “At trial, however, proponents presented only one
witness, David Blankenhorn, to address the government interest
in marriage. Blankenhorn’s testimony is addressed at length
hereafter; suffice it to say that he provided no credible
evidence to support any of the claimed adverse effects
proponents promised to demonstrate.”
To void Title VII, you’d need to show the same lack of
rational state interest. Maybe you can, but it’s not as
open-and-shut as you imply.
Bennett Haselton is saying exactly what I was thinking as I read this opinion. I don’t believe you have the right to marry whoever you want and neither does anyone who would be against others marrying relatives, children, or whatever. However, Benkyou Burito’s argument here is the only time I’ve ever heard that made and I think it is brilliant.
I’ve always heard it phrased the opposite way, that if straight people get to marry who they would like, homosexual people should get to as well. That statement doesn’t make any sense since all people are equally prohibited from marrying those in their gender.
If only Benkyou Burito’s equality argument was the one the courts would use, I wouldn’t feel like my head was going to explode from the disregard of logic every time people talked about this issue and we would have the bonus of cases clearly not opening up marriage to relatives, children, whatever, and goats.
OT: watched your “debate” with Dinesh this morning
http://www.c-spanarchives.org/program/294549-1
Found it pretty frustrating for you especially with Stephen Moore there trying to be both funny (unsuccessfully) and diverting attention from any of your valid points in case his religious beliefs are jolted (successfully).
Would be interested in what you would have said if he actually gave you the 5.5 minutes instead of guffawing that you only have 20 seconds.
I normally find him interesting to listen to but he just reminded me of the annoying guy at work who makes double entendres about EVERYTHING.
@Pete, I would argue that the equal protection clause does imply that you have the right to marry whomever you want. However, the implication is that you can only marry someone who wants to marry you. That rules out children, because legally they don’t have standing to choose to marry you. It also rules out goats, for the same reason. You also can’t marry people who are mentally incompetent.
Choosing to marry relatives is a little stickier. The South Carolina (I live in SC) Code of Laws states “No man shall marry his mother, grandmother, daughter, granddaughter, stepmother, sister, grandfather’s wife, son’s wife, grandson’s wife, wife’s mother, wife’s grandmother, wife’s daughter, wife’s granddaughter, brother’s daughter, sister’s daughter, father’s sister, mother’s sister, or another man.” I have a hard time seeing why a man can’t marry his stepmother or daughter-in-law, or anyone to whom he is not related by blood. Note that marrying one’s cousin is not prohibited.
Dave: I’ll blog about the religion debate next week.
Pete says: “If only Benkyou Burito’s equality argument was the one the courts would use, I wouldn’t feel like my head was going to explode from the disregard of logic every time people talked about this issue and we would have the bonus of cases clearly not opening up marriage to relatives, children, whatever, and goats.”
The problem is, who decides? A judge? A panel of judges? The Legislature? The voters in a referendum? A social planner? Bureacrats? Technocrats? Or maybe the American Bar Association? Or maybe the American Pyschiatric Association? Or we leave it to the market, say, with some kind of competitive bidding process (we auction off homosexual or beastiality marriage licenses, to see “how much people are willing to pay” to marry the goat or the horse?
One more thing: nobody mentioned polygamy. So far the issues mentioned here are around “monogamous” marriages (be it with same gender, opposite gender, goats, sheep, dogs, horses, trees, bushes), but what about polygamy? Could not the same case be made for polygamy? Not even polygamy among humans; suppose Person X wants to legally marry his or her goat AND horse, why not?
@Manfred, we discussed polygamy last week: http://www.thebigquestions.com/2010/07/29/more-wives-are-unsafe-wives/#more-4143
If it weren’t for insurance, end of life issues, and taxes, I wouldn’t care if the state sanctioned my marriage to my wife. What do I care if some town hall gives me a piece of paper or not? We would’ve still had the same wedding, we’d wear the same rings and we’d act married.
If all the benefits that go along with being married are extended to gay people who want to get married, we still deny those benefits to anyone who doesn’t want to get married or hasn’t found someone to marry yet. That seems just as unfair as denying gays to marry.
We shouldn’t treat married people different than unmarried people. Once we allow people to buy insurance for whoever they want, once we tax everyone the same, and once we allow people to decide who handles end-of-life issues (instead of relying on a default spouse), all the fighting over marriage would be moot.
Al V.: it is correct that polygamy was discussed in this blog, you are right. My argument was that it was not discussed in the context of the legal opinion issued by this federal judge regarding Prop 8 in California.
I think you’re making the wrong analogy. The analogy between a life-partnership relationship and an employer-employee relationship is apples and oranges. It might be more accurate to say that people ought to be free to form business partnerships with whomever they want. So if I chose to start a company with you, as opposed to my female friend A, then she ought not to be able to bring a case for gender discrimination. Likewise, the state should not be able to make rules saying that companies may only be started by male-female couples.
I haven’t had a chance to read the full opinion yet, but the parts I heard on the radio last night sounded nuanced enough (as Ron suggests).
The way I learned it in high school civics class was that while majority rule is important, it sometimes conflicts with minority rights. Majorities make decisions for “the people” but in doing so do not become “the people.” “The people” still includes members of the majority and members of the minority. As a result, majorities that harm minority rights diminish everybody’s rights. Unfortunately, as James Madison feared, the idea that everyone loses when minority rights are trampled is a lesson that does not stay learned.
Saying a gay person cannot marry a person of his or her choosing seems to be a trampling of a minority right. Saying that a bigot has no right to reject a job applicant based on race is not a trampling of a bigots rights, it is a preservation of a higher ideal that protects all of us.
Through this lens, I have no problem with the prohibition against polygamy which from what I can see was always about the subjugation of women more than anything else. The law protects the less powerful, in this case women.
But, sadly, when this one gets to the Supreme Court, I fear this version of the institution may overturn it…
DividedLine:
Saying a gay person cannot marry a person of his or her choosing seems to be a trampling of a minority right. Saying that a bigot has no right to reject a job applicant based on race is not a trampling of a bigots rights, it is a preservation of a higher ideal that protects all of us.
One could equally well (or equally poorly) argue that: “Saying a bigot has no right to reject a job applicant based on race seems to be a trampling of a minority right. Saying that a gay person cannot marry a person of his or her choosing is not a trampling of a gay person’s rights; it is a preservation of a higher ideal that protects all of us.”
As soon as you start sacrificing rights to “higher ideals” then you are a slave to the higher ideals of whoever happens to be sitting on the judge’s bench. Sometimes those ideals will agree with yours and sometimes they’ll be diametrically opposite.
I’d prefer to live in a world where courts view their mission as the protection of minority rights, not the imposition of the judges’ “higher ideals”.
Steve Landsburg,
You may not like the imposition of a judge’s higher ideals, but the very fabric of our society is founded upon higher ideals. The first higher ideal appears in the Declaration of Independence “all men are created equal.”
If you believe in free will, people choose to be bigots. People do not choose their race. Race is more fundamentally protected than bigoty.
Historically, bigotry is a majority position, and race discriminated against is a minority. Nothing has changed. Race needs protection. Bigotry does not.
Okay, I’ll ask. From a libertarian perspective, if two consenting adults desire to marry, why should they be prevented, even if they are brother and sister? And save the degradation of the genetic pool argument–that is suspect and would require widespread and repeated inbreeding. Moreover, we already allow people to marry who would be more likely to result in defects than a brother and sister chosen at random.
Manfred–“The problem is, who decides? A judge? A panel of judges? The Legislature? The voters in a referendum? A social planner? Bureacrats? Technocrats?”
It doesn’t really matter who decides as long as it is in accordance with law. But once you say it is alright to marry a goat, you can not give that right only to certain people. Laws are applied equally in this country or they are unconstitutional.
If it is legal for me to marry a woman then it must be legal for my sister to marry that same woman. Otherwise the right to marry that woman is not being protected equally under the law.
And sure, if somehow they get a law passed that says you can be legally wed to a houseplant or a toddler then I think every citizen of the USA should have that right too.
DividedLine: what higher ideals? Ideals from whom? The laws in the US are all derived from the US Constitution, the original and the subsequent Ammendments. Where in the Constitution is there a protection of gay marriage?
Neil: ok, we allow a brother and sister to marry. No problem. What about 2 men, 3 women and a horse (6 individuals total)? Do we allow them to legally marry? Who decides to allow such thing?
Manfred:
The government’s involvement in marriage, and in other arrangements among people, must reflect an interest of society at large. In marriage, I think it has to do with joint property and child custody. I think that is why bigamy is not recognized. Go ahead, have as many “wives” or “husbands” as you like, but just don’t look for legal protections–we restrict those to monogamy. The horse, of course, is not human and has no rights as such.
“1. It prevents each plaintiff from marrying the person of his or her choice”
I’d like folks to spell out in what ways specifically Proposition 8 prevented this. As far as I know, Proposition 8 did not require police to show up at any wedding and physically prevent the marriage from taking place.
What Proposition 8 did do was prevent the extension the state-recognized treatments of marriage, such as tax, inheritance and power-of-attorney treatments, to all types of marriages.
If that’s what we’re after, fine. I’d just like that to be spelled out.
No, that is not true at all. All California marriages, and even all same-sex domestic partnerships, get all of those state-recognized treatments. Prop. 8 did not affect that at all.
Neil Okay, I’ll ask. From a libertarian perspective, if two consenting adults desire to marry, why should they be prevented, even if they are brother and sister?
You will probably get as many arguments as there are libertarians, but some believe that government should not be involved in the marriage business at all. An interesting example is by David Boaz (currently at Cato, I think, though there may be more than one) over a decade ago on Slate.com, who argued that we should Privatize Marriage: A simple solution to the gay-marriage debate (ultra-slow and flaky link here: http://www.slate.com/id/2440 — or you can do a Google search and pull it up in a web cache).
The central quote: So why not privatize marriage? Make it a private contract between two individuals. If they wanted to contract for a traditional breadwinner/homemaker setup, with specified rules for property and alimony in the event of divorce, they could do so. Less traditional couples could keep their assets separate and agree to share specified expenses. Those with assets to protect could sign prenuptial agreements that courts would respect. Marriage contracts could be as individually tailored as other contracts are in our diverse capitalist world. For those who wanted a standard one-size-fits-all contract, that would still be easy to obtain. Wal-Mart could sell books of marriage forms next to the standard rental forms. Couples would then be spared the surprise discovery that outsiders had changed their contract without warning. Individual churches, synagogues, and temples could make their own rules about which marriages they would bless.
Of course, there really isn’t any reason you need to restrict a contract to only two people — perhaps we will decide to extend the right to any number of people, of any sex and blood relationship, as long as they can legally sign a contract. It would neatly sidestep the the usual slippery-slope arguments that come up in the gay marriage debate.
(I’ve tried to make things clearer via HTML, which tends to break things horribly half the time. If the post is messed up, I apologize.)
Roger – What was the purpose of Prop 8?
7 million Californians voted for Prop. 8. Their purposes varied. If you believe Judge Walker (the gay judge who just issued an opinion), then the voters had no rational purpose.
My comment was about what Prop. 8 actually did. You need to understand that before discussing the pros and cons.
Manfred,
You asked: “DividedLine: what higher ideals? Ideals from whom? The laws in the US are all derived from the US Constitution, the original and the subsequent Ammendments. Where in the Constitution is there a protection of gay marriage?”
This is precisely what the courts were set up to decide. And this is precisely the process that is unfolding before us now. Prop 8 just went through the District Court, and the next step is the Court of Appeals. It will end there unless the Supreme Court decides to hear the case after that. I suspect this is far from over.
People like to think “we have a government of laws and not men,” but this is a myth. At any time in our history it has been individuals who make, enforce, and interpret the law. The judiciary is just as political as the other two branches of our goverment.
This is the process established in the Constitution to answer your question.
DividedLine: you say “This is precisely what the courts were set up to decide.” And also: “This is the process established in the Constitution to answer your question.”
This is where it gets tricky. There was a referendum in CA; people voted, actually, millions of people voted. This was perfectly legal under the US Constitution AND the California state constitution. One federal judge thinks he knows better than millions of people voting.
For me this is not so simple.
Neil: you say: “The government’s involvement in marriage, and in other arrangements among people, must reflect an interest of society at large.” Who decides what those interests are? A judge? A panel of judges? A referendum where millions of people vote? A social planner? Bureaucrats? The American Bar Association?
@Manfred: “Who decides what those [society’s] interests are?”
That is really a practical question [answer–the political system you’ve got decides, somehow] and I was asking about a conceptual question about the whys of government’s involvement in marriage. And my answer is that government is involved because complete private contracts are not possible or too costly.
As several people above have pointed out, it is not st all clear why the state should involve itself in marriage un the first place. So far as I can tell, the only legitimate reason why married people should get special treatment is because kids bring positive externalities and married 0role have kids. This would preclude extending the same special treatment to gay marriages, but would beg the question of why we give benefits to married people instead of just people who have kids.
I understand your point in theory, Steven, and actually agree in theory. But setting aside theory for a moment, if you were emperor, how would you deal with the fact that members of a certain race were held as slaves in this country for a good portion of its existence as a country? I assume you would respond in some sort of fashion such as “just because there were slaves in this country has nothing to do with making people work together.” I agree in a sense. But the way I view it is that this is like a reparation… and perhaps justly so. We stole from a certain race. Now, we are passing a law to try to give back by forcing whites to do something they don’t want to do (i.e., not consider race).
You agree that the Civil Rights Act should be repealed. I would also like it to be repealed after a certain amount of time, but perhaps having it on the books for a few years longer will help with justice due to our slave history.
I would challenge someone to demonstrate that having kids produces externalities. They have “infra-marginal” externalities at best, and those don’t matter.
Josh:
We stole from a certain race.
Speak for yourself.
I think your reading of this case is uninformed by knowledge of constitutional law, and you make some very basic errors. As another commenter already pointed out, hiring people of your choice is not a recognized fundamental right. Bigots are not a legally recognized separable “suspect class”. You make other, bigger errors that I haven’t noticed other comments address. Much of the court’s decision involves whether any state interest can be furthered by gender discrimination in marriage, for example, and finds no such state interest. If a valid state interest were found, it might or might not pass strict scrutiny or rational basis review, but the analysis would have to be done; clearly Title VII does further some state interests, probably “compelling” ones that could pass a strict scrutiny test.
Cos: I think your reading of this case is uninformed by knowledge of constitutional law
I was arguing from logic, not constitutional law. If your point is that constitutional law is an ass, then I agree with you. I can think of no principled reason why homosexuals should count as a suspect class and bigots not.
(To put this another way, I was making an argument about what the law would say if the law made sense. You’re making an argument about what the law actually says. In that sense, you’re off topic.)
Laws against bigotry in hiring might be viewed as something analogous to a pigouvian tax, since bigots do not feel the full cost of their bigoted actions, whereas homosexuals do feel the full cost of their marriage decisions. I don’t know if this argument can be beefed up so it isn’t devastated by the observation, “Of course Title VII interferes with the hiring decisions of many people who are not bigots”, but these are just some first thoughts.
Manfred—“There was a referendum in CA; people voted, actually, millions of people voted. This was perfectly legal under the US Constitution AND the California state constitution. One federal judge thinks he knows better than millions of people voting.”
The appeal of a republic, and a constitutionally limited republic in particular, is that it dampens the effects of “tyranny by the masses”.
You are arguing that a majority of Californians may rewrite their state constitution in such a way that it denies anyone in that state rights granted by the constitution. Should we suspend the right to a speedy trial or habeas corpus, so long as we only do it to unpopular minority groups?
Just having the votes is not an argument that can support breaking the law. Now if they pass an amendment to the US constitution I will sit back down.
Neil: I would challenge someone to demonstrate that having kids produces externalities.
Well, Steve has a good go at this in (I think) Fair Play – he argues essentially that you take on the vast majority of the costs and not all of the benefits when you bring a child into the world, so people don’t have enough children. I will admit to having no idea what “infra-marginal externalities” are, so it’s entirely possible that I’m missing something.
However, if having kids *doesn’t* produce positive externalities then I’m still missing a justification for the state giving special privileges to married people.
Roger –
I haven’t discussed the pros and cons of Prop 8.
But, I think you’ve helped me make my point.
My main point is that unless Prop 8 empowered law enforcement to prevent gay marriage and the judiciary to try and penalize people for getting married, then it didn’t do much.
And, if it didn’t do much, that’s something people ought to know.
Is that correct or incorrect?
John Faben:
An inframarginal (or nonmarginal) externality is one that is present in total but not at the margin. Since it is not present at the margin, there is no market failure and no case for corrective policy. You’d be surprised how many subsidies are based on this fallacious externality reasoning.
I am sure that Steve’s argument does not make this mistake, however, because I know that he must understand inframarginal. I’ll have to look at Fair Play, but I will take some convincing.
More sophistry from Steven Landsburg– as if we didn’t get enough of that in his book.
The parallel is poor because the choice of who one can marry has far different social implications than the choice of who one may hire. Part of the government’s job is to restrict choices that may have adverse affects on the popluation– one does not have the choice to commit fraud or assualt another person. In many of these cases the purpose of the law is to restrict the liberties of one party in order to enhance the liberties of another, e.g. to protect the rights of consumers, marketers do not have option of commiting fraud. The same goes for hiring practices: employers are restricted in how they evaluate candidates so that candidates, namely minorities, have greater free access to employment.
By restricting choices on marriage, as prop 8 does, the government does not seem to enhance any other party’s freedom or rights to the degree that the civil rights act does. The civil rights act carries the net benifit of enhancing minority rights (that should be obvious), proposition 8 does nothing to enchance rights– unless you think that the freedom to bash other people’s sexual preferences is a right.
Seth–That’s incorrect.
“My main point is that unless Prop 8 empowered law enforcement to prevent gay marriage and the judiciary to try and penalize people for getting married, then it didn’t do much.”
Preventing homosexuals from marrying does not require law enforcement. It merely requires that the appropriate offices withhold the granting of marriage licenses to gay couples. Which is something Prop. 8 did do.
A marriage is not a ceremony, it is a state sanctioned status reflected on numerous official documents. A marriage does not exist except when it conveys this status. Until you can check “married” on your IRS paperwork, you are not married.
>> To put this another way, I was making an argument about what the law would say if the law made sense. You’re making an argument about what the law actually says. In that sense, you’re off topic. <<
That's another, much bigger, can of worms. You disagree with some of the legal precedents, but that doesn't mean they don't make sense, it just means either you don't know the reason or you don't like it. However, you've very clearly *misunderstood* the law in writing this post, so your misunderstanding is mixed up with whatever disagreements you may have with it, making it unclear which is which. If your intention was to explain what you think is wrong with legal precedent, that makes this post sloppy, so I think you really did simply not understand what you were writing about, and then when it was pointed out, jumped to "but that doesn't make sense!" – and I think it was a knee-jerk jump, with no real attempt to understand the law.
The premise is wrong. By not hiring a person on the basis of race, you are denying them the opportunity of obtaining employment. This is a very significant cost to them, and must be balanced against the gain you obtain by emplyoing who you want. You might as well have said the law against murder prevents people from indulging their wishes to kill. True, but it allows people the freedom from being murdered. On balance, we think it a good thing to restrict peoples freedom to commit acts that are directly harmful to others. The gay marriage case has no such cost to be balanced.