The Constitution, American Law, and Same-Sex Marriage

A primer on why Conservatives are either wrong, or are not really Conservatives.

Allow me first to dispel the most common straw man in the debate:  Marriage equality does not undermine, nor does it infringe upon, the right of religious organizations to determine upon whom they will or won’t bestow the sacraments of their faith.  No one is demanding any church be forced to perform same-sex marriages.  Religion is not an argument.

The issue is simply one of basic human rights and Constitutional protections.  To wit:

“Conservatives” from time to time like to point to the Enumerated Powers delineated in Article I, Section 8 of the Constitution as limiting the role of the Federal Government, and they are correct.  Therefore, laws such as The Defense of Marriage Act are clearly unconstitutional because the power to define marriage is nowhere to be found in I, 8.  Incredibly, “Conservatives” overwhelmingly support and voted for DOMA.  That circle has yet to be squared to anyone’s satisfaction.

“Conservatives” are likewise generally fond of the Ninth Amendment, which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  In essence, the Ninth Amendment is saying “Hey look, people have a lot more rights than the few we listed in the first eight amendments, and just because we didn’t  list them doesn’t mean people do not possess them.”  For example, we have a right to provide for the education of our children, and more than that there is actually a right to have children if we are able and willing to provide for them.  There is a right to utilize the fruits of our labors for our own benefit in whatever way we chose, so long as we harm no one else nor deny them equal benefit.  And there is a right to marry.  That is indisputable, it has been available to segments of our population since we first became a nation.

That last statement might seem obvious, but full realization of that right has at times required a struggle.  In many states, marriage between couples of difference races was forbidden by law until as recently as 1967.  (Interestingly, many of the same arguments now being offered against same-sex marriages were used to discourage marriages between men and women of differing color.) Change had come slowly but inexorably to most of America in the case of interracial marriage, but in 1967 sixteen states, all Southern or Border States, still forbade mixed marriage.  In that year, the Supreme Court in the case of Loving v Virginia, ruled that Virginia’s anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. In its decision, the court wrote:

“Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the StateThere is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.

Which, as stated so eloquently in Loving above, brings us to the Fourteenth Amendment.  The primary effect of the Fourteenth Amendment is to make the rights, defined or not, of American citizens binding on the states.  It reads in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In essence, if there is a right to marry, and if states recognize and indeed encourage the exercise of that right among some of their citizens, they must extend that right to all of their citizens equally.  Nowhere in the Constitution or the Fourteenth Amendment is there an exclusion carved out in respect to Gays, Lesbians, et. al.

That’s it.  It is that simple and that basic.  It has nothing to do with religion, nor, under the First Amendment, should it.  No other arguments matter, nor will they suffice.  Those arguing against same-sex marriages are in essence arguing to condemn members of the GLBT community to second-class citizenship, and under our Constitution there can be no such thing.

1 Comment

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One response to “The Constitution, American Law, and Same-Sex Marriage

  1. Sad to think that some people would need the Constitution (and Supreme Courtjesters) to tell them what their (and others’) rights are, isn’t it. Because even if the Constitution declared that it was within government’s authority to define and regulate (and ration) marriage, it still wouldn’t be right.

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