I’m going to out myself as a supporter of same-sex marriage.
Punchline: Why shouldn’t they be as miserable as the rest of us?? Har-dee-har-har!
But seriously, folks, I do indeed support gays being allowed to get married. Why? Well, because it’s not prohibited by the US Constitution, of course!!
To thoroughly address this issue, I have to start with a bit of a history lesson. Power through, dear reader, it’s important.
Most people remember the Civil War. It’s also called the War Between the States or even the War of Northern Aggression. No matter what it’s called, why you think it was fought speaks to where you were raised.
- If you were raised in the North, you say the Civil War was fought over slavery.
- If you were raised in the South, you say the Civil War was fought over states’ rights.
- If you were raised in the West, you say “Whoa, dude. There was a Civil War?? Heavy.”
The truth is, the Civil War was fought over states’ rights – the RIGHT of these UNITED STATES to engage in self-determination. The self-determination issue in question was slavery. See? Both groups are right.
What the southern states wanted was to continue using slaves as their primary labor force. They felt very strongly that the federal government should have no say in that, despite some southerners recognizing the abhorrent nature of a culture that not only allows, but thrives upon the dehumanization of an entire group of people based on the color of their skin.
As a result of this war, the concept of states’ rights was dealt a series of crippling blows. First and foremost was the war itself, which the North won. The winners of a war earn the right to enforce their system on the losers. This is a time-tested tradition dating back before written history. When you lose a war, the winning team gets to tell you what to do. Period.
Slavery was therefore abolished by the 13th Amendment to the Constitution: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
The southern states, stinging from their loss in the war, set about finding ways to perpetuate the traditions to which they’d grown accustomed. If they couldn’t own people, they’d marginalize them, forcing them into all sorts of situations that looked like slavery but were – according to the letter of the law – not actually slavery. This included all sorts of efforts to restrict the rights of the black population of the South, a collection of laws that are called Black Codes.
Black Codes were largely addressed by the Civil Rights Act of 1866, but these efforts at marginalizing southern blacks were dealt a fierce blow by the 14th Amendment, which states in Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
Pay attention to the bolded section.
Read it again.
That is the last nail in the coffin of states’ rights. The federal government is laying its collective dick on the table (BAM!) and saying “States can’t make laws we don’t agree with.” Period. Done. Over. This happened in 1868. Every state law passed since then has existed at the whim of the federal government.
Of course, the southern states had to push the boundaries, so they started making new laws that made it nearly impossible for blacks to vote.
In a Republic (…and to the Republic for which it stands…) voting is the ultimate expression of citizenship. WE THE PEOPLE, people! THIS MATTERS.
When you take away somebody’s right to vote – it’s called disenfranchising – you are, in effect, taking away the one pure expression of citizenship to which they have access. You marginalize them completely by denying them their vote.
OF THE PEOPLE. BY THE PEOPLE. FOR THE PEOPLE… or at least the people we approve of, right?
The federal government came back with the 15th Amendment: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
BAM! Again!! States’ rights? WHAT STATES’ RIGHTS?? States will do what they’re told by the federal government! It’s right there in the Constitution!
I hear you saying, “But Wes, doesn’t the 10th Amendment modify Article IV, Section 2 of the Constitution – you know, the Full Faith and Credit Clause – somewhat, in that it assigns to the individual states any rights which are not enumerated in the rest of the Constitution?” That’s an excellent question.
The 10th Amendment states: 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. What this means is that if the Constitution doesn’t address it, the States can, and the States can do so by putting these issues to the people. That’s exactly why we have seen states put same-sex marriage bans up for votes in the recent past.
Basically, what we’ve ended up with is a swirl of conflict.
1. The Constitution does not address same-sex marriage, or indeed ANY form of marriage at all.
Go ahead and look – the word “marriage” isn’t anywhere in the entire Constitution. Promise.
2. The 10th Amendment assigns to the States any issue/right not addressed by the Constitution.
3. The Full Faith & Credit Clause requires the laws of one State to be honored by every other State.
Wait for it… (aka see below…)
4. Some States have passed gay marriage bans, others have legalized gay marriage.
5. There was a federal law (stay tuned) that effectively banned gay marriage.
Now, let’s jump back into more modern times and take a look at that federal law that banned same-sex marriage.
The so-called Defense of Marriage Act, or DOMA, passed Congress in 1996. It’s a law, not a Constitutional amendment. This means it is subjected to the strictures of the Constitution, but is itself NOT a part of the Constitution.
Conservatives Republicans wrote the DOMA in 1996 – Bob Barr from Georgia and Don Nickles from Oklahoma. The House Judiciary Committee freely (openly?) admitted it was meant to be a statement expressing moral disapproval of homosexuality.
Here’s the important part of the DOMA is Section 2: No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
What this means, effectively, is that each state in the union is under no obligation to respect the marriage laws – and ONLY the marriage laws – of any other state in the union, but only if those marriage laws specifically address a same-sex couple. This is directly and specifically in contradiction to the part of the US Constitution that requires (yes, REQUIRES) every state to honor the laws of every other state.
This clearly violates the Full Faith and Credit Clause, otherwise known as Article IV, Section 1 of the Constitution of the United States: 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.
Section 2 of the FF&CC goes on to say: The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.
It’s Section 2 of Article IV of the Constitution that Section 2 of the DOMA is specifically contradicting.
There’s more, however; Section 3 says: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.
What the Supreme Court effectively said when it struck down Section 3 of the DOMA was that Congress cannot define “marriage” as being legal only between one man and one woman, nor can it restrict the definition of the word “spouse.”
What. The actual. Fuck?
The Supreme Court is now, apparently, in the dictionary business, deciding how Congress can define specific words. By ignoring the unfairness of Section 2 of the DOMA and focusing on the easy-to-strike-down Section 3, the SCOTUS failed to serve the American people, allowing the opponents of same-sex marriage to continue discriminating against other American citizens.
Note that I said “unfairness” and not “unconstitutionality” when I talk about Section 2 of the DOMA. That’s right, Section 2 is NOT unconstitutional. Why? Because right there in Article IV, Section 1, it says that Congress can decide how State laws will be “proved.” In this context, “proved” means “established.” “Prescribe” in this context means “to lay down as an action to be followed” – in other words, Congress can determine how state laws are enacted. This establishes the constitutional basis for SCOTUS leaving Section 2 of the DOMA intact.
Remember my mantra: WORDS MEAN THINGS.
It’s this conflict between the Full Faith and Credit Clause, the 10th Amendment, and the Defense of Marriage Act that has us in the position we’re in now.
The whole reason I started writing this post is because last week, Judge Arenda Allen, speaking for the US District Court for the Eastern District of Virginia, struck down the state’s same-sex marriage ban. This overturns a state constitutional amendment voted on by the citizens of the state in 2006. She also overturned Virginia laws that prohibit state institutions from recognizing same-sex marriages performed in states where they are legal – these laws clearly violate the Full Faith & Credit Clause and are therefore unconstitutional. Expecting an appeal, however, Judge Allen stayed the overturning pending an appeal in the US Court of Appeals for the 4th Circuit, based in Richmond.
If the 4th District Court upholds Allen’s striking of Virginia’s ban on same-sex marriages, Virginia will become the first former Confederate state to legalize same-sex marriage. The 4th Circuit includes North Carolina, South Carolina and West Virginia – so striking down Virginia’s ban would set the precedent to strike down those state’s bans as well. Maryland is part of the 4th Circuit, but it legalized same-sex marriage not too long ago.
Eventually, the issue of same-sex marriage WILL end up in front of the Supreme Court, and then we’ll have the decision once and for all. I have read the Constitution over and over and OVER, and I have yet to see one single mention of marriage in its entirety.
Be an American. Support the Constitution. Support same-sex marriage.