Gay Marriage and the Constitution

The argument over gay marriage rages on, and attempts to “define” marriage as a union between one man and one woman (i.e., the Defense of Marriage Act, or DOMA), are still being debated in the public forum because of the recent activities of states sanctioning gay marriage (IA, MA, etc.). 

Let me say clearly:  DOMA is unconstitutional.  Why? Because it discriminates between one citizen and another, conferring unequal rights and privileges to the majority and infringing the rights and privileges of the minority.

One of the social conservative arguments against gay marriage is that we are giving legal recognition to the gay lifestyle.  This is patently untrue.  We are not giving legal recognition to any lifestyle by allowing gays to exercise the constitutional rights they already have, including equal rights and equal protection under the law.  DOMA, however, did recognize and attempt to give special legal recognition to the heterosexual lifestyle.   This is in direct conflict with the Founding Principles of our country even if it is the history, tradition and practices of the American people.

The Founding Principles of our government are clearly stated in the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”

“Inalienable” rights are rights that cannot be taken away by man or endowed or conferred by man to any citizen.  Likewise, the right to marry would surely fall under the “Pursuit of Happiness” principle.
Whether Americans like it or not, the Supreme Court in June 2003 placed the issue of marriage in the Constitution. In Lawrence v Texas, the Court ruled that state legislatures cannot treat homosexuality any differently than heterosexuality. The Court stated that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, [and] procreation” and “persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Relying on Lawrence, the Supreme Judicial Court of Massachusetts thereafter forced that state to legalize same-sex marriage. The mayor of San Francisco and other municipalities now say that state and federal constitutions demand the issuance of same-sex marriage licenses.

The finding in Lawrence is interesting, because, like abortion,  it treats marriage as a privacy right. And then there’s the “Justice is blind” principle.  The Court should not treat any citizen differently from any other citizen, at least, not according to the Constitution.  The Constitution does not specifically support or reject any lifestyle.  DOMA is a statute, and is virtually useless in determining rights, because it is not a part of the Constitution or an Amendment ratified by the states.
Since the courts have construed state and federal constitutions to include a purported “right” to same-sex marriage, it is incumbent upon Congress to ensure that the definition of marriage throughout the United States reflects the will of the people. This can only be done through the established amendment process….

As Justice Scalia noted, Lawrence “dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.” Accordingly, marriage is no longer a decision that the people of the several states can determine for themselves.

And this is appropriate, because our Founders were smart enough to know that government by public opinion poll would lead to great instability and the oppression of the minority.  Majority rule with protection of minority rights is the model they chose.  The same evangelicals and social conservatives who have been wringing their hands over “judges legislating from the bench” lo these many years now want judges to legislate from the bench and uphold DOMA, which is clearly unconstitutional.  Ah!  The ironies of life!
… There is not nor has there ever been a civil right to same-sex marriage. You cannot take away a right that does not exist.

Although I disagree with that logic, let’s reverse that — the same can be said of heterosexual marriage: a civil right to marry has never been specifically defined, heterosexual or homosexual.  The reality is that our Constitution and Founding Principles do not provide for unequal treatment of a minority in contrast with the majority.  Either it is a right for everyone, or no one

Distinguishing between civil unions and marriages is also a non-starter, because it again treats one group differently from another. Additionally, it must be resolved at the Federal level, because it will create a situation where one state confers the right to marry to homosexuals and other states may not recognize the marriage.  Once again, it’s either all or nothing at all.
Article Four of the Federal 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….

What this essentially means is that State Defense of Marriage Acts (DOMAs) are unconstitutional, plain and simple….

… 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. …  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.

One of the arguments for gay marriage is based on the special tax breaks and privileges enjoyed by legal spouses.  Perhaps the best way to “fix” this would be to remove all the government benefits and tax breaks allowed for only married couples.  Then everyone will be equal again.  This would also address the problem that single people are always treated differently in our tax code, etc.
Whatever the Constitution said (or did not say) about marriage for the past 215 years, whatever the history, traditions and practices of the American people confirm (or do not confirm) about the meaning of marriage, marriage is now in the Constitution. The Founders did not do it. But the courts have. Without a constitutional amendment, the judiciary – and not the people – ultimately will determine what marriage means.

If you, as a judge, consider “the history, tradition and practices of the American people” in your deliberations when reaching a decision, you are not a strict constructionist judge by definition. It is interesting that “strict-constructionist-judge-loving” conservatives all of a sudden want judges to legislate from the bench and rule in favor of DOMA, in effect declaring marriage a right only to be enjoyed by heterosexuals.  The Founders did not specifically define marriage, but they did say that all men were created equal and that the majority could not infringe the rights of the minority. So based on the Constitution, DOMA is out. 

The bottom line is that the Constitution does not assert the right to establish a definition of marriage that distinguishes between the majority and the minority to any entity — be it Congress, the several States or the people — thereby infringing the rights of the minority.  The historic and existing definition of marriage is not diminished or disregarded; it is a social construct, not a legal one.  There is no law preventing religions or social groups from using the definition of marriage that suits them within their own practices, so long as they realize it is not a legal construct that can be imposed on other citizens outside their group.

No citizen can be treated differently from another, and, based on that, the DOMA is unconstitutional.  Homosexuals can and should enjoy the same rights and privileges as heterosexuals.  And it is improper for any state to even allow the voters to hold an election to decide to infringe the rights of the minority.
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.

Our Founding Fathers were well-acquainted with religious tyranny and, consequently, went to great lengths to avoid the possibility of creating a theocracy or a democracy wherein the majority could oppress the minority. Keep in mind, they had been the minority before escaping religious tyranny and coming to America. The spirit of individualism was in the room at the Constitutional Convention. The idea that a democracy must empower individuals and balance majority rule with minority protection, that Federal law must supercede State law without encroaching on its purview, and that, above all, the Rule of Law must prevail against the Rule of Man are all important principles that protect us even today.

But the attitude among social conservatives and evangelicals is that they want to impose their beliefs and their lifestyle on the rest of us. And this is neither acceptable nor constitutional, thank God. Those heterosexuals that don’t have strong feelings regarding gay rights are reluctant to enter the fray of public debate. I am not gay either, but I am concerned about having anyone’s rights infringed, because if it can happen to them, it can happen to me on some other issue.

MLK said it best: “If one of us is not free, then none of us are free.”

This issue may not apply to me directly on this particular issue, but the concept does. Equal rights and equal protection under the law must be precious to all of us. The Constitution is the blueprint for our representative democracy. We cannot stand idly by and watch our rights be taken from us and the original intent of the authors of the Constitution betrayed. By definition in the Declaration and the Constitution, only God has the right to confer or take away or infringe rights. As far as man is concerned, it’s not his job to decide which rights his peers have. Our rights are inalienable, and that includes everyone regardless of race, ethnicity, religion, culture, background, gender and/or sexual preference. You don’t have to approve of someone’s lifestyle to recognize that they have the right to make their own choices.

God chose to give us free will. Knowing this, it has always amused me to watch evangelicals arrogantly work so hard to “undo” what God did by trying to limit the choices others can make, but never themselves….


About Laura Schneider

Retired IT consultant (disabled), musician and animal lover. I support the constitutional concept of Right of Privacy and no discrimination against any person based on race, religion, ideology, gender, sexual preference or disability. I am very concerned about the erosion of our constitutional rights and protections under GWB (and even this administration). I strongly oppose torture, rendition or illegal search and/or seizure (without a warrant) and warrantless wiretapping. I believe that education is our best hope of a bright future for our children. Knowledge is power, and that's the kind of authority (Biblically speaking) that our children must have in order to be successful in a 21st century world.
This entry was posted in civil liberties, civil rights, Gay marriage, gay rights, LGTB rights, Prop. 8 and tagged , , , , , , , . Bookmark the permalink.

7 Responses to Gay Marriage and the Constitution

  1. artsykr says:

    Thanks for wrting this and for the time you put into this…I hope you don’t mind but I would like to post this on a couple of other sites…as well as to send to “Equality California”…Art

    • lauraschneider says:

      You certainly have my permission to use this article. However, the real work was done by a writer named John S. Dixon in his article “HOMOSEXUAL (SAME-SEX) MARRIAGES: An interpretation of the American Constitution” (, and you should really read and quote his passages directly.

      The more information we have, the more ammunition we have!

  2. Jeri says:

    I agree………

    “No citizen can be treated differently from another, and, based on that, the DOMA is unconstitutional. Homosexuals can and should enjoy the same rights and privileges as heterosexuals. And it is improper for any state to even allow the voters to hold an election to decide to infringe the rights of the minority.”

  3. LSekhmet says:

    I completely agree with this and am glad you wrote this, Laura. Well done!

  4. Geno says:

    I am a little late to this discussion, but I am curious how you can make the argument that marriage is a constitutional issue or one of equal protection? It is nothing more than a custom allowed and regulated by the government (aka the people).

    Otherwise, brothers and sisters would have the same constitutional ‘right’ to many the partner of their choice – in this case, each other. But those who are supporters of homosexual marriage don’t seem to get behind this constitutional view. Talk about a minority group left out of the discussion!

    • Marriage should be a right for all adults so long as they are willingly marrying a human (of the same species) who is of the age of legal consent and who is not closely related to them biologically (that would likely result in genetic abnormalities).

      Now, I would raise the age of consent to that same age the law considers a person legally responsible for contractual agreements (over the age of 21), along with all other “adult” privileges, which probably does not make me popular among the 18-20 crowd, but if you can’t sign a contract to buy a car or purchase a house, you should not be able to sign a contract that “technically” speaking binds you to another human being for life. Talk about a life sentence!

    • I actually believe that it would be more appropriate to make all issues regarding domestic partners a “civil union,” including heterosexuals. Why? Because we must remove the connotations of a church-sanctioned “marriage” with the legal decisions that are involved in merging lives financially and socially. A civil union would carry with it all tax implications, legal descendancy, legal partner benefits and rights, etc. Leave marriage to be a purely religious function where the church blesses a civil union.

      We have laws currently in place to prevent underage children from marrying, or to prevent forced marriage or incest. These are “side issues” whose only purpose is to distract people from the real issue of legal civil unions. And it is a guarantee of the Constitution, if you consider the purposes outlined in the Preable (to promote the general welfare). If we recognize all citizens as being equal, being required to function equally in society by paying taxes, obeying laws, etc., then there should be no distinction between individuals regardless of their race, gender, national origin, religion, sexual preference, etc. We don’t give gays a “cut rate” on taxes because we prevent them from marrying whom they love (within the same parameters as heterosexuals with regard to age, free choice and familial relationship), so what justification do we have for preventing them from enjoying the same rights as heterosexuals?

      If it is because some religions view homosexuality as a “sin,” then it violates the Separation of Church and State principle in that it imposes the religious view of some citizens on others unequally.

      That is why Separation of Church and State is so important. Our Founding Fathers left their home countries to escape religious tyranny. Now the Christian Coalition and other evangelical groups are trying to enact laws that would, de facto, establish religious principles in our laws that are not universally shared by all our citizens.

      It is not just a “custom,” because there are legal ramifications to our current marriage laws, including tax privileges (the “marriage” deduction) and legal rights of spouses to visit their spouse in hospitals and other public institutions, to participate in medical decisions, property rights and inheritance, etc. It’s much more than a “custom,” it is a legal issue and a civil right that is denying the LGTB community equal rights and equal protection under the law.

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