As hot-button topics go, the issue of same-sex marriage ought to be cooling off by now. It's explicitly legal in most of the country--although the most conservative people and states still cling to the notion that it is and/or ought to be illegal--and public opinion clearly illustrates popular support by a majority of Americans. Nonetheless (sigh), since we are less than a month away from a mid-term election which includes posturing for the Republican nomination for the 2016 presidential election, the politics of opposition to same-sex marriage are consuming a significant amount of the available oxygen.
Therefore, in the spirit that everybody is entitled to their own opinion, but nobody is entitled to misrepresent the law, here's a short question-and-answer overview of how same-sex marriage fits within the U.S. Constitution. The questions are from the public discussion of this subject--and, in fact, have been in popular discussion for about twenty years--and the answers are based on my own reading of a well-thumbed copy of the Constitution and its Amendments. As you probably know, the Constitution is a fairly short document, and its Amendments are few and typically concise, so it isn't a big job to do this. But, in case you might be wondering about some of the constitutionally-related comments that are thrown around in hopes of winning a few votes, this might save you the time of reading the Constitution yourself if you are looking for what might be the basis for some of those comments.
And with that, on with the Questions and Answers:
Question 1. Is marriage mentioned in the U.S. Constitution?
Answer 1. Nope. Nothing there about marriage.
Question 2. If there's nothing about it in the Constitution, then what laws establish the legal act of getting married?
Answer 2. State laws.
Question 3. Is there something in the Constitution that supports/enables/authorizes the states to make these laws?
Answer 3. Yes. More specifically, Amendment 10--the last Amendment in the Bill of Rights--says "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."
Question 4. So, then, since the Constitution says nothing about marriage, and it also devolves non-specified "powers" in general to the states, then each state can set up its own laws regarding marriage, and those laws can, among other thing, define marriage as only being legal when it involves a man and a woman, right?
Answer 4. Well, no, that's not what the Amendment says. The Amendment clarifies the Constitution and explicitly says that the states can make laws--which they were doing anyway at the time that the Constitution and the Bill of Rights were written and adopted--but it doesn't take anything away from the Constitution.
Question 5. What's your point?
Answer 5. Good question. There are at least two other places in the Constitution--one in the main body, and another in a later Amendment--that would (and do) conflict with any law that would define marriage as between a man and a woman only. The first place--admittedly, this is my own observation, since I have not yet seen it remarked upon in any reporting of the various legal aspects of same-sex marriage--is in the opening sentence of Section 2 of Article IV, in which is stated "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." I'm not qualified to argue this in front of the Supreme Court, but if that statement is to be rendered into plain American Standard English for purposes of this discussion, it sounds suspiciously like it is saying that if a same-sex couple is legally wedded in, for example, the state of California, and they move to another state (maybe Texas?) then that second state is obligated to recognize the legal status of the incoming couple's same-sex marriage. After all, that would be a "privilege" granted, by law, in another state. There's probably more that could be made of this, but that's enough for now.
Question 6. That seems kind of iffy; you got something else that's better?
Answer 6. Yes, I mentioned an Amendment. It's Amendment 14. Section 1 of that Amendment reinforces the concept of "privileges and immunities" by saying that states may not make laws that abridge those things. And then to be crystal clear, that Section concludes by saying that no state shall "deny to any person within its jurisdiction the equal protection of the laws." It's not a very big leap of constitutional logic to conclude that any state law that defines marriage in such a way that it excludes same-sex marriage--or, perhaps, interracial marriage (yes, that's been done, too)--is unconstitutional because it would therefore be a law that is applied differently for different groups of people, and is therefore unequal in its protection.
Question 7. That conclusion is just your opinion, isn't it?
Answer 7. No, not "just" my opinion. Several Federal appeals courts have said the same thing. At this point, no such court has said anything that contradicts that conclusion. For that matter, opponents of same-sex marriage--to my knowledge--don't seem to dispute the conclusion that such laws would be unequal. If there is an argument by anybody that a law that explicitly defines marriage in the way that we are discussing it here would constitute "equal protection," then I've not read about it, and I read a lot of stuff. As a result, any state law that says something that would rule out same-sex marriage in that state is on very thin constitutional ice.
Question 8. Will the U.S. Supreme Court eventually issue a definitive ruling on same-sex marriage?
Answer 8. Maybe. They are almost certainly going to have to take a case on the issue when a Federal appellate court issues a ruling that conflicts with the appellate rulings that are already on record, and that could happen at any time (and, eventually, it will happen). As for the ruling being "definitive". . .who knows?
Question 9. Could the U.S. Constitution be amended to make a national definition of marriage?
Answer 9. Yes.
Question 10. Is it likely that the Constitution will be amended to define marriage as being between a man and a woman only?
Answer 10. Anything is possible, but at this point the success of such a proposed amendment would be nothing more than a pipe dream.
Okay, you're right; that last one there is my own opinion. But it made me feel good to write it, and I truly believe that most people in this country feel the same way.
And that's the way that the hot button cools.
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