An essay donated by John S. Dixon
An interpretation of the American Constitution
with regard to same-sex marriage
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A Balance of PowerThe issue of same-sex marriage has swamped our airwaves for the past several months and
has taken center-stage here in Massachusetts. There are many ways
to look at this issue: personally, religiously, politically,
emotionally, rationally, legally, even Constitutionally. As a
person directly affected by the outcome of this national social
debate, I have looked at it from all these angles. In so doing, I
have found nothing at all which persuades me that there exists a rational reason to deny fully equal marital rights for same-sex couples.
For sake of rational clarity, and for sake of driving home the most
acceptable, even conservative reasons for my stand, the Federal
Constitution shall serve as the backdrop for my discussion, with a
few rational tangents included. Mind you, I am not a Constitutional scholar, nor a lawyer. I am a common, average
American citizen who treasures the deep values of justice and
equality our Constitution embodies and veterans across the ages have fought and died to
preserve. It is with that in mind that I present the following
argument: Our forefathers could never have dreamed this day would come, that gay men and women in
America would fight for the right to marry just as heterosexuals
marry. But then, neither could they dream that the President of the
United States would attempt to write discrimination into our
Constitution, either. The fact remains that the Constitution was
written to "...secure the Blessings of Liberty to ourselves and our
Posterity." (Preamble) The first argument against same-sex marriages was a religious outcry. The conservative
Christians insisted (and still do) that same-sex marriage is
unbiblical and therefore should not be allowed. The religious
argument, however, is moot, thanks to the First Amendment, which
states "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof…" It is thus
that our forefathers sought to protect all Americans from the
religious zealotry of a few, or even many; only 52% of Americans
claimed to be Christian of any denomination at the last Census.
Should the other 48% of the American people be made to honor a
conception of the Creator they don’t agree with? Of course not;
this is why we have separation of Church and State. Yet the Catholic Church in Rome and its many parishes insist on swaying
political decisions! This is a clear violation of the First
Amendment, and our Congressional Representatives would do well to
not accept phone calls from constituents whose only remarks are
religiously centered purely out of respect for this separation. I
am not suggesting the squelching of these people’s Freedom of
Speech; far from it. What I am suggesting is a more active approach
on the part of our Congressional Representatives in the assurance of
Separation of Church and State, Separation of Religion from Civil
Duty. Further, let us not lose sight of the words all priests and
pastors must utter to end their officiating in order to make a
marriage legal: "By the power vested in me by the State (of
Massachusetts), I now pronounce you…" Religious objections set aside in this rational discussion, and allowing reason to rule,
the next objections often are expressed as concern that marriage,
being a fundamental building block of society, should not be
"redefined" to include same-sex couples. After all, everyone knows
by now that children thrive best in a mom-and-dad household. If
everyone is so concerned, then maybe they should work on their own
marriages so the current divorce rate can dip below 50%. And what
of those gay men and women who were married and have children
already? Will the conservatives next seek to enact a law to take
the kids away from their biological parents? Yes, Virginia, even
gay people have children. I have three of my own. My kids are very
normal kids; in fact, gay parents’ children are no different from
anyone else’s. But marriage, it is then argued, is for procreation. It’s an interesting theory, but
it doesn’t float in the swimming pool. How many couples use birth
control? How many abortions are performed every year? And how many
infertile couples get married? It seems to me that same-sex
marriage will in no way impede the further pro-creation of the human
race, especially if these other aforementioned circumstances have
not. Statistics show that more and more married couples are
electing not to have children, which runs in clear contradiction to
the marriage-for-procreation argument.
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The legality of same-sex marriage has come under scrutiny. It is good to examine
seemingly new philosophies and perspectives; how else can we
determine the rightness of something? But what hasn’t been
considered is the legality of denying same-sex marriage. Article Four of the U.S. Constitution 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.
Clause 1: The Citizens
of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States."
In other words, no State has the right to ignore civil agreements reached in other
States. So if a same-sex couple in Massachusetts gets married after
2004-May 16th, no State has the right to ignore that
marriage. In fact, all States are required to recognize that
marriage, because it is a Civil matter. What this essentially means
is that State Defense of Marriage Acts (DOMAs) are unconstitutional,
plain and simple. What about the Federal DOMA? Sorry, that, too, will be struck down soon, as it also is
unconstitutional by virtue of the Tenth Amendment, which 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."
Because the Constitution does not explicitly give the Federal Government
jurisdiction over marriage, the right to regulate marriage is, by
default, given solely to the States to decide. Therefore, Congress
had neither right nor power to pass DOMA in the first place. The solution, some may argue, is to amend the Federal Constitution, which is what George W.
Bush endorses. There is one problem with that: Article Six reads:
"This Constitution, and the laws of the United States which shall be made
in pursuance thereof; and all treaties made, or which shall be made, under
the authority of the United States, shall be
the supreme law of the land; and the judges in every state shall
be bound thereby, anything in the Constitution or laws of any
State to the contrary notwithstanding."
Boiled down, this means that the Constitution is barred from contradicting itself. Thus, a Federal Marriage Amendment that would deprive a singled-out populace
of any rights runs in clear contradiction to Article Four and Amendment Nine of
the Constitution. Amendment Nine states:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people."
The Constitution says in Amendment Fourteen: "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."
What this basically
means is that the States do not have a right to pick and choose the
people to whom it will grant rights and privileges. If one group of
people is allowed to marry, all groups are allowed to marry. If
same-sex couples are barred from marriage, it is an abridgement of
the privileges they are entitled to as citizens of the United
States; it would be a deprivation of liberty and prosperity, and
would strip same-sex couples of equal protection of the laws.
Plainly, it is discriminatory, and the Fourteenth Article clearly
states that selective granting of privileges is not allowed in the
United States. Some may say, "Gays have the right to marry just as everyone else—a right to marry
someone of the opposite gender." Similar arguments were made in the
days of miscegenation in the 1950’s and 1960’s: "Blacks have the
right to marry just as whites do -- the right to marry someone of their
own race." Such a stance is clearly a form of hypocrisy and
oppression, and has no place in the America our forebears
envisioned, and contradicts the very basis of the repeal of the
miscegenation laws. Albeit slowly, Americans have striven over the
years since Brown vs. the Board of Education to uphold that
ruling socially; separate but equal is not equal. In our societal
efforts to make this ruling a social and legal reality, we have made
tremendous strides to end all forms of discrimination, finally
recognizing our fellow man and woman’s rights as unalienable
regardless of creed, religion, race, gender, and even sexual
orientation. Regardless how one attempts to argue in favor of banning same-sex marriage, our
Constitution is clear that doing so is illegal, even to the point of
disallowing our own Congress to revise the Constitution so that it
might contradict itself. The time has come. Same-sex couples have
existed throughout history. From the Alexandrian Empire to Greece
to Rome to America today, gay couples continue to forge out the best
lives they can. I know my partner and I do. And one day, we hope
soon, we will be allowed to marry, so that we may enjoy the
benefits, privileges, and responsibilities far too many couples
already take for granted. After this fight for that which we should
already have, we could never, ever take our marriage for granted.
Let us celebrate, for this is the land of the free… and soon we will
all be free to marry whomever with we fall in love.
John S. Dixon
"Equal
rights are not special rights unless you're the one who doesn't have them."
Do you disagree?If you have a conflicting interpretation of the U.S. Constitution, please
consider writing an essay on this topic. We will seriously consider publishing it.
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Copyright © 2004 by the author
Originally posted online: 2004-MAR-20
Latest update: 2012-MAR-07
Author: John S. Dixon
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