Some people believe that marriage is a civil right, safeguarded by our constitution, however, the Constitution itself never mentions marriage nor is there any explicit law banning marriage between two individuals of the same sex. THE 14TH AMENDMENT HAS ZERO TO DO WITH BEHAVIOR OR SEXUAL PREFERENCE. The civil war was not fought over what happens in ones bedroom. That argument is old, tried and ridiculous. SAME SEX MARRIAGE IS NOT CONGRUENT TO INTERRACIAL MARRIAGE. Skin color is a far cry from behavior, attraction and choices. (regardless if you think sexuality is a choice or not).
Let’s look at this logically; the notion of marriage as a “right”, is a presupposition of the verity that someone else must marry you, by virtue of forfeiture of another individuals liberty to satisfy your “right”. Clearly, the only way this right could be fulfilled is by coercion, presumably, (definitely) by government. Moreover, since when do “rights” come at the expense of another indivdual’s liberty, is liberty from coercion of one’s fellow man not a right? The common fallacy among the left and many libertarians is that this is a “social” issue when it is not at all. Moreover, it’s basis as a legal issue merely falls under the scantest penumbra of the law possible, insofar as marriage is a not a privilege conferred by the government; it existed long before the law and government. Marriage was/is a religious union that had and continues to have no definitive relation to the state whatsoever, other than as a TAX STATUTE. (I’m using capitals for emphasis being that for some, this is hard to comprehend). If you want to marry a lamp post, you can, however don’t expect to get tax breaks from the state. Everyone is afforded the opportunity to marry, and everyone can, why do you need validation from the state. I hear libertarians arguing that the state should stay out of the “marriage business” as if government grants people the right to get married. If you don’t want the state involved you have that option. Marrying anything or anyone without a state license is not a crime! This position is antithetical to the entire notion of libertarianism and in blatant disregard of our Constitutional Republicanism.
The same-sex marriage debate is sophistry from the get go and is not about rights or government. This is about merely redefining the word, marriage. The only reason the state recognizes a marriage is for TAX PURPOSES ONLY. Not to tell you who, how, when, where and what to marry. There must be a legal statute as to define who would get the benefits. THIS IS NOT ABOUT SEX ACTS, sex between a man and women serves a purpose other than pleasure or love. (obviously, that’s why we all exist.) The reason for this is to encourage a man and a women to marry for three reasons: to have children (posterity), to ensure that these children will not become a public charge and from a posteriori perspective of historical human knowledge dating back over a millenia (over 6 to be exact) that a man and a women can more adequately raise children than a one parent household or with two people of the same sex. (there isn’t a study in the world today that does not prove this premise).
Now, I’m not saying that two people of the same sex should not be allowed to adopt, that’s not at all what this blog post is about, nor is it about the morality of homosexuality. I could care less, really. My beliefs are mine alone, and I really don’t want to know what heterosexuals do in their bedroom let alone homosexuals. Thirteen states in the Union either have domestic partnership laws (afforded the same benefits as marriage) or have redefined the term altogether. That’s totally fine and well within their rights to do, exactly what the notion of federalism is for.
What I do have a problem with however, is how liberals and libertarians think that violating the Constitutional process is a good thing because of their own ideology, zealotry or prejudices.( I guess I understand why Marxists would, just not libertarians) If this issue was so critical and demanded by so many people, why the rush to get five lawyers to coerce and nullify the will of the people. Let’s look at the Supreme court ruling in California to get a better idea. Now, if you want same sex marriage, call your representative and lobby for change, you can petition your government, but sooner or later a law you may not agree with could get imposed the very same way, and you’ll think twice about the tyrannical methods of politicians and the government.
But I digress…
Some people feel that the Federal Supreme Court should usurp the legislative branch and federalism undergirded by the 10th amendment in order to legalize, top down, same sex marriage. This blog post will discuss the constitutional process that ensures a rule of law procedure protecting the individual from an oligarchy of nine lawyers usurping power that belongs to the States or to the people.
This is not a political argument, as some views have blurred the political lines. It is a legal issue that is only perpetuated by constant distortion of the facts, ignorance of our founding documents and direct opposition by some of our rule of law. In 2000 and 2008 by referendum, the sovereign voters of the State of California voted in favor of the traditional definition of marriage via prop 22 and prop 8 respectively, both confirming/reiterating the definition of marriage; the union of one man and one woman. The body politic of California voted and approved a measure that would be definitively added to their State constitution. These State definitions and statues are solely for the purposes of State tax benefits to married couples, not the legality of private citizens ability to marry one another how they see fit. In other words, two men can marry one another, but under State tax statutes they would not be awarded tax benefits. (However, they are afforded the same tax benefits under the domestic partnership statutes in California.. more proof this is not about rights, but about a word.)
In the case of Prop 8, opponents of the statute sued and eventually it reached the Supreme Court of California overseen by the Federal 9th circuit court of appeals. During the deliberations of the court the people of California’s representatives refused to argue the very peoples case they were chosen to represent. Jerry Brown, then the Attorney General of California was derelict in his duty as described by Valerie Richardson of the Washington Times:
…The answer: Because Mr. Brown refused to defend Proposition 8, even though part of the attorney general’s traditional job description is to defend state law from legal challenges — including laws with which they disagree.
This would not be the only time Jerry Brown and California’s AG would shirk their duties, as noted in a piece by the Ruth Institute:
The path to this point has been circuitous to say the least…last December the court heard arguments on the case’s merits, but because Governor Jerry Brown and Attorney General Kamala Harris have refused to defend the law, in January the 9th Circuit asked the California Supreme Court to decide whether the Protect Marriage coalition had legal standing to defend Prop 8.
With the slowly changing opinion of the body politic of the United States the Obama Administration after years of defending the law rightly as constitutional, decided to challenge the Federal statute (DOMA) defining the law for Federal tax purposes only. As a tax collecting governing body the Federal government has many tax statutes that are applied and enforced by the IRS under the Department of Treasury. In late March 2013 these statutes (proposition 8 and DOMA) were deliberated in front of the U.S. Supreme Court, reigniting a longstanding national same sex marriage debate.
The same sex marriage debate is easily answered with careful consideration of our Constitution. As seen previously with prior court decisions like Roe V. Wade, many ideologues refuse to let legislation occur how it was Constitutionally mandated to occur; through the body politic via the legislative branch of government. The 10th Amendment of our Constitution is far more lucid than ambiguous, it clearly 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. (US Constitution-Amendment X). A right to marriage is not articulated nor enumerated in the U.S. Constitution so the power to define marriage falls on the states, irrespective of the Federal definition.
The purpose of the 10th amendment is to diffuse the powers of the three federal branches of government amongst the several states. This is only one of the protections included in the Constitution to prevent central planning and ultimately, tyranny. This amendment affords plenary power to the States and safeguards the liberty of the individual by keeping legislative matters in the representative’s hands that are closer to the people.(the state) Moreover, why should laws passed in a city in Oregon be imposed on a city in Georgia? They are composed of people with differing lifestyles and opinions, none more valid than the other. The 10th amendment safeguards the sovereignty of the people at the local level insofar as protecting their liberty from a ubiquitous federal leviathan.
As for DOMA, a law passed by bipartisan majorities in the House and Senate and signed into law by the President is perfectly and unequivocally constitutional. It is the very process by which our government is to abide by in order to maintain the will of the people. It is not in violation of the 10thamendment because it merely defines marriage a federal statute for the purposes of tax collection. It does not impose its definition on the people/states. (there are hundreds of IRS tax statutes at the federal level).
The same sex marriage proponent’s main charge is that the majority of the American people want to change the definition of marriage to include same sex unions. The main strength of this charge is that the major sentiment towards same-sex marriage is beginning to change in this country, its through this organic reversal of previous majority opinion that legislation can and will be changed through the legislative process. (insofar as this sentiment actually exists) Same sex marriage proponents or supporters should urge their Representatives to introduce and pass legislation recognizing same sex unions.
Another charge from same sex proponents is constitutional, based on the equal protection clause of the 14th Amendment, Section 1. (U.S. Constitution Amendment XIV Section 1) The 14thamendment guarantees equal protection under the law. The strength of this argument is that the 14th Amendment of the Constitution can give the wiggle room needed to a Supreme court Justice in order to overturn Prop 8 and DOMA, without the need for legislation. This would also be far speedier than the legislative route.
The fact that the body politic’s views on same sex marriage are changing is certainly advantageous towards its proponents cause. However, if this is true, and it may well be, then why try to change the status quo in the Supreme Court composed of nine lawyers that have no business legislating policy issues? What if the court ruled same sex marriage is unconstitutional? That would set a dangerous precedent of jurisprudence that tramples on the rights of states to define marriage as the people see fit.
We are not ruled by an oligarchy of Supreme Court justices, on the contrary, that’s the very reason we elect legislatures at the federal and state levels. The people decide what is right for their respective State. If New York decides to recognize same sex marriage and California does not, those folks that decide they want a same sex union in CA can move to New York. On the flip side however, if the Supreme Court decides to ban same sex marriage at the Federal level, it would be a violation of their respective States right to decide as well as a violation of individual liberty. It is far easier to move to another state, but much harder to move to another country.
The constitutional argument put forth stands on shaky Constitutional ground as well. There certainly is an equal protection clause in the 14th Amendment; however, this equal protection was added to Constitution as an exclamation point to the Civil War. It was another measure to explicitly state that Black Americans are American and entitled to equal protection under the law. It was in no way related to marriage, or sexual preferences. This also is not a formula for success as far as same sex marriage is concerned; proponent’s arguments should be more focused solely on the rule of law. To equate the same sex marriage debate to race is wholly inaccurate, and disenfranchises the brave black men and women who fought against violations to their natural rights as human beings, already protected by the constitution. They were treated in a brutal, vicious and appalling manner; not coincidentally the treatment was upheld by the very same Supreme court the same-sex lobby is begging for today.
This argument is not only based on the morality of homosexuality. There is a large amount of people that believe it to be immoral and they have every right to believe that. There is also a large portion of people who believe that homosexuality is perfectly moral and they also have every right to believe that. My views or anyone else’s views should not be imposed on the entire populace by the Federal government. That would by its very nature be Tyrannical, providing for the very purpose of the 10th Amendment or federalism. Ideologues on both sides of the political spectrum get caught up bickering about fallacious arguments because they have little to no knowledge of the law.
We already have a system in place that answers most of the questions to our social, political and civil liberties, yet we choose to ignore it and replace it with our own personal opinions or feelings. Most arguments stemming from either side tend to be sophistical by appealing to emotion rather than a logical conclusion. The rule of law denudes emotion and fosters logic, it undergirds the liberty of the individual by retarding the ideologies or policies of those we may oppose. Federalism retains the right of the people to choose by which laws they wish to be governed.
Charges of bigotry are hurled at opponents of same sex marriage, and it is sometimes equated to racial discrimination. But how can a definition be discriminatory? Are drinking age laws discriminatory towards teenagers? Are polygamy laws discriminatory towards a religion? If one does not like the laws he or she is living under in their State or locality then lobby your representatives to change them, but don’t force people who do not live in your State to abide by the same laws if those people do not feel the same way. It is one thing to fight for what you believe in, but it’s another to force everyone to live by those beliefs via unelected lawyers rather than the people’s lawful representation.
If same sex marriage advocates were serious about promoting same sex marriage, they should lobby the Representatives in those respective states that have not yet changed their definition of marriage, (In most cases this is already happening) Instead of citing the Equal Protection Clause of the Constitution use the 10th amendment because that would be more applicable and advantageous to their cause.
The same sex marriage debate is only debatable in the eyes of the individual’s moral compass, not in that of the law. The Constitution is a document that must be adhered to in order to ensure the liberty and equality of the individual themselves. Most of the debate is predicated upon fallacious premises or slogans and rarely is the proper methodology of the law discussed.
It is entirely appropriate to either support or oppose the recognition of same sex marriage if it is done legally and amicably and within the confines of valid political discourse. The only side to this argument is the Constitutional one, or should be the only one that matters. It cannot easily be rebutted because it is written very clearly in our governing document, which all politicians take an oath to uphold. What we need is less bickering, fallacy and demagoguery and more of an analytical Constitutional discussion.
– Will Ricciardella