Opening Statement
I don't have anything against gay people, since my basic philosophy in life has always been "live and let live." However much I might want to wish gays all the happiness in the world, though, that sentiment doesn't blind me to the fact that there is no constitutional basis for granting them the right to get married. In fact I'm amazed that our federal courts seem to be lending their support to our gay brothers and sisters in their quest for marriage equality. I'm going to offer some Constitutional arguments that I hope will turn this tide.
Once upon a time
Let's go back in time to when the US Constitution was first adopted - and there were only 13 states in the union. Could two men (or two women) have been married in any of those states? Would anyone have claimed they had a constitutional right to marry their same-sex partner? If one of those 13 states had decided to allow same-sex marriage, does anyone really think the Constitution would have allowed those couples who moved to one of the 12 other states to be afforded the same rights and status as heterosexual couples living there?
I can see it now: "Excuse me, President Washington. I served under your command when you were leading the fight for independence. My name is Robert and this is Fred, and we'd like to get married to each other. Do you see any Constitutional objection to this? There must be, since no one will issue us a marriage license."
What I'm driving at: The general temper and opinion of We-the-People back in Washington's time didn't even consider same-sex marriage. So why should anyone pretend that the Constitution (surely a reflection of that long ago "general temper and opinion") supports such a notion today?
Let's start with the Tenth Amendment
The Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
Who can or cannot get married is not a power "delegated to the United States by the Constitution." I'll even go out on a limb here by claiming that the early state constitutions (say, before the United States consisted of 30 states, just to pick a number) didn't specificially list the power to grant marriage licences as a state power. That task was considered a state function and was routinely listed as such, without any debate or thought going into it. That is, people wanted to get married (so there was demand), which is why local laws and procedures were set up to allow this.
Concerning the Tenth Amendment, the "power...reserved...to the people" has to do with their power concerning their expectations that social contracts be enforceable. The broad-based and unquestioned assumption of We-the-People was that men and women married each other - and not partners of the same-sex. This was an assumption not even open to the kind of debates reserved for far-fetched, way-out senarios. Same-sex marriage didn't even cross the mind, let alone qualify as a remote possibility.
Much is made out of the fact that the Defense of Marriage Act tried to define marriage as being between a man and a woman. My contention is: DOMA didn't have to define anything, since the pre-existing (though unwritten) social contract had already taken care of that.
Article 1, Section 10:
This is from Article 1, section 10:
"No state shall...pass any... law impairing the obligation of contracts..."
This is universally understood to apply to business contracts. But I maintain that social contracts should also be covered. The Ninth Amendment helps us out here: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The non-enumerated right I'm referring is the right of reasonable expectation - a term of my own coinage. Under the social contract I cited above, we have a reasonable expectation that the status quo regarding marriage (and the status quo, generally speaking) be considered binding unless otherwise voided by constitutional provision at the federal level.
In other words, if proponents of same-sex marriage wish to realize their goal, then let them say so in terms of a proposed constitutional amendment. That, of course, will require ratification by at least three-fourths of states. But...no one said this would be easy. Same-sex marriage is too radical a violation of our social contract to allow it to become an established institution by means of twisting an interpretation out of our Constitution that our Founding Fathers never even foresaw.
A clarifying court case
QUOTE:
[source: http://www.reuters.com/article/2014/07/09/usa-gaymarriage-colorado-idUSL2N0PK2LW20140709 ]
Adams County District Judge C. Scott Crabtree said in his decision that Colorado’s prohibition [against same-sex marriage], approved by voters in 2006, conflicted with the fundamental right to marry.
:UNQUOTE.
Judge Crabtree overlooks the fact that the "fundamental right to marry" is so basic and fundamental, it was never stated in the Constitution - it never had to be. And this "fundamental right" was always meant to apply only to opposite-sex couples. It should be regarded as part of that social contract favoring the status quo (or, if you prefer, the built-in prejudices/assumptions of the people). Prejudices exist, long-standing outlooks exist. They should be considered as having as much weight as any written laws. If enough people end up not liking some of these outlooks, then they should attempt to amend the Constitution with wording specific to their new outlook.
United States v. Windsor
This wikipedia link succinctly provides the back story behind this quote (also from this link):
http://en.wikipedia.org/wiki/United_States_v._Windsor
QUOTE:
Section 3 of the Defense of Marriage Act, which federally defined marriage as a union between one man and one woman as husband and wife, is unconstitutional under the Fifth Amendment Due Process Clause's guarantee of equal protection. The federal government must recognize same-sex marriages that have been approved by the states. The judgment of the Second Circuit is affirmed.
:UNQUOTE.
What I highlighted in yellow above is the flaw in the Supreme Court's analysis. The states don't have a right to approve same-sex marriages, since marriage is defined in that social contract I mentioned above that We-the-People have a right to expect shall be enforced. This is a power that the Tenth Amendment assigns to the people (that is, to all the people of the United States), not to the states.
As for states deciding to pass laws banning same-sex marriage, that would be redundant and totally unnecessary. Again, I cite that pre-existing social contract and the reasonable expectation of We-the-People that it be either enforced or amended as concerns its marriage concepts.
Article IV, Section 2
Article IV, Section 2 states, in part:
"The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."
Heterosexual couples should have a right to expect such "privileges and immunities" when moving to another state, such as are enjoyed by heterosexual couples within that new home state. Section 2 should not be construed to mean that a same-sex couple from out of state has the right to expect the "privileges and immunities" granted to hetero-couples within their new state. Those "privileges and immunities" were not created with same-sex couples in mind.
The Full Faith and Credit Clause
Article IV, Section 1: "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."
Some argue that this clause should force states (with bans) to accept the same-sex marriages performed in permissive states. This is not a power that the states should have, not at the expense of violating the social contract cherished by the entire body of people within this country. Any attempt to allow individual states to have a say in this matter, is an usurpation of that social contract which should only be "violated" by means of constitutional amendment at the federal level.
There is a saying: "A House divided against itself cannot stand." Though used as an anti-slavery argument, it would serve well to refute the idea that what defines marriage should be left to the individual states. Allowing the states to allow same-sex marriage would be too divisive and would allow for economic and cultural degradation within disallowing states and within the country as a whole. We still don't know the impact that same-sex marriage will have, especially on the children in such families - or the social costs that might be incurred should that impact be negative.
I'm going to quote from an article without making any comments, just to provide a status report. The heading within this article is "Application to Family Law," from which I quote only selected sentences. I make no use of ellipsis marks or other devices that would indicate omitted text.
QUOTE:
[Heading: Application to Family Law]
http://en.wikipedia.org/wiki/Full_Faith_and_Credit_Clause
Until the Supreme Court struck down all laws banning interracial marriage in 1967, a number of states banned interracial marriage and did not recognize marriage certificates issued in other states for interracial couples. The full faith and credit clause was never used to force a state to recognize a marriage it did not wish to recognize.[17]
The clause's application to state-sanctioned same-sex marriages, civil unions, and domestic partnerships is unresolved. Between 1996 and 2004, 39 states passed laws and constitutional amendments that defined marriage as consisting solely of different-sex couples. Most explicitly prohibit the state from honoring same-sex marriages performed in other states and countries.
Though the rulings have been temporarily stayed, prohibiting same-sex couples from marrying has been declared unconstitutional by United States District Courts in Utah, Oklahoma, and Virginia.[18] In Kentucky a District Court has held that marriages of same-sex couples from other states must be recognized.[19]
In August 2007, a federal appeals court held that the clause did require Oklahoma to issue a revised birth certificate showing both adoptive parents of a child born in Oklahoma who had been adopted by a same-sex couple married in another state.[20] Another federal appeals court held differently in April 2011 in a Louisiana case, Adar v. Smith.[21]
In 2013, two gay men successfully sued to get their out-of-state marriage recognized in Ohio despite a state ban...[22]
:UNQUOTE.
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Much of the world, certainly much of the Islamic world, consider many of the life styles that flourish within the United States to be not only degenerate but in opposition to the will of God. And there are conservative factions within this country which share those same sentiments. If we're going to make changes as fundamental as what defines marriage and family, we should have a national dialogue on this. We should make a decision as a nation, instead of as a disjointed collection of states. This is too important for such a haphazard approach.
People like Hillary Clinton are trying to claim to be on the right side of history in their support of same-sex marriage. Fine, but any change should come to pass by means of a broad-based national approach, which should include constitutional amendment.
Personally? I think Mrs. Clinton is making an error in judgment of the first magnitude, which could cost her the presidency. Especially if any sober Republican opponent digs in, not with religious arguments but with the constitutional arguments I've cited here. I understand the sentiments of the conservative communities which are striving for their version of a pure and righteous land. If they start using non-religious, commonsense, nuts-and-bolts arguments, they might cause a lot of voters to stop in their tracks and exclaim: "What on earth have we allowed to happen here right under our noses?"
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Steven Searle, just another member of the
Virtual Samgha of the Lotus and
former candidate for US President (in 2008 & 2012)
NOTE: The highlights in yellow which I've added above do not appear in any of the originals.
Contact me at bpa_cinc@yahoo.com
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