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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 Power

The 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."

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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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