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My Libertarian views on same sex marriage and the 14th Amendment

October 13, 2014

Re: An Opinion Piece by Keen Umbehr, Libertarian Candidate for Kansas Governor
A divided 10th Circuit Court of Appeals ruled that Utah’s ban on same sex marriage violated the 5th and 14th Amendments of the U.S. Constitution. The Appellate Court held that the right to marry is a fundamental right for all citizens. Any state impingement on a fundamental right requires a “strict scrutiny” review. In the Utah case, the state’s attorney general could not convince the three circuit court panel that the state had a compelling interest in restricting marriage to only opposite sex couples.

The 10th Circuit Court further concluded:

"On strict scrutiny, an argument based only on pure speculation and conjecture cannot carry the day."

The Court acknowledged that “for centuries there have been powerful voices to condemn homosexual conduct as immoral,” but held that its obligation was “to define the liberty of all, not to mandate our own moral code.”

“As the district court eloquently explained, it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian.”

"Consistent with our constitutional tradition of recognizing the liberty of those previously excluded, we conclude that plaintiffs possess a fundamental right to marry and to have their marriages recognized."

"Appellants acknowledge that a state may not “invoke concerns about religious freedom or religion-related social strife as a basis for denying rights otherwise guaranteed by the Constitution.”

"The protection and exercise of fundamental rights are not matters for opinion polls or the ballot box."

Being a constitutional conservative means embracing all of the provisions of the constitution – no exceptions. More times than not, this is a very difficult task, even for patriots.

It means that I must support the freedom of speech even when that protects the speech of people like Fred Phelps. It means embracing the 4th amendment when that results in suppressing evidence and allowing an otherwise guilty criminal defendant to go free. It means that murders like the Carr brothers get state paid lawyers to defend them and protect their constitutional right to a fair trial. And it means that I must accept ruling of our judicial system even when it conflicts with my own religious beliefs.

That is what a constitutional conservative embraces. That is what we Americans have “mutually pledged our lives, fortunes and sacred honor” to uphold.

The U.S. Supreme Court denied the state of Utah's appeal. The ruling of the 10th Circuit Court of Appeals now stands as law for Kansas - Marriage is a fundamental right for opposite and same sex couples alike.

At the end of the day, I do not want to live in a country or state governed by priests, pastors and theologians. I want, and will fight for, the right to live in a state where governmental power over its citizens is limited by our Constitution.

That is the only place where liberty for all is found.


Keen Umbehr
Libertarian Candidate for KS Governor
Alma, Kansas