Marriage should be defined by the states. The Constitution demands it, and as a benefit intended by our nation’s framers, the power is left with the people.
President Barack Obama agrees. In a recent interview, he announced his support for same-sex marriage. However, he also said it would be a ‘mistake to try to make what has traditionally been a state issue into a national issue.’ The members of the 9th Circuit Appeals Court have other ideas.
In February, the 9th Circuit ruled against California’s Proposition 8, a statewide referendum in California to eliminate its state government’s recognition of gay marriage. The referendum succeeded in November 2008, and same-sex marriage ceased to be recognized in California in accordance with the will of the people. Despite the popular vote, the 9th Circuit overturned this democratic decision in a 2-1 ruling.
This month, North Carolina held a referendum to define marriage as between one man and one woman and to ban same-sex civil unions in the state. Although the North Carolina vote followed on the heels of Vice President Joe Biden’s surprise endorsement of gay marriage, the referendum succeeded, meaning North Carolina will recognize neither same-sex marriages nor civil unions.
Perhaps the constitutionality of North Carolina’s decision will be called into question, as in the case of California, and the courts will again overturn the will of the people. It seems conceivable that ultimately, the Supreme Court will decide the extent of state governments’ power to define marriage. We can only hope the Supreme Court justices avoid judicial activism.
Although the 9th Circuit Court declared that California cannot constitutionally ban same-sex marriage, notwithstanding the possibly valid reasons in its state constitution, the court’s justifications for the ruling stemming from the U.S. Constitution are questionable. Specifically, the court opined that a state’s banning of same-sex marriage would violate the 14th Amendment’s due process and equal protection clauses, but this is not the case.
The due process clause says no state shall ‘deprive any person of life, liberty or property without due process of law.’ Referencing this constitutional guarantee, the 9th Circuit Court’s opinion regarding Proposition 8 states ‘no compelling state interest justifies denying same-sex couples the fundamental right to marry.’ In other words, for the due process clause to apply, marriage must be a fundamental right. It must be specifically enumerated in the Constitution or recognized as a fundamental right by judicial precedent.
The equal protection clause forbids states from making laws denying ‘any person within its jurisdiction the equal protection of the laws.’ So, no state can make laws that use race as a determining factor for participation in a government service, meaning no state can make laws segregating marriage.
Similarly, because of equal protection, no state can make laws that bar people from something due to sexual orientation or gender. Because the ‘one man and one woman’ definition does not take sexual orientation into account, the law does not discriminate based on sexual preference. Traditional marriage laws apply to heterosexuals and homosexuals equally.
For example, in a state that only allows traditional marriage, a man, gay or straight, can only marry a woman. Furthermore, because that state does not bar either gender from participation, there is no gender discrimination.
Because the right to a government-recognized marriage is not enumerated in the original Constitution, Bill of Rights or the rest of the amendments, those claiming that marriage is a fundamental right, including the 9th Circuit, are not doing so on a constitutional basis. Because marriage is not a right specifically listed in the Constitution, the power to define marriage is reserved for the states.This power is derived from the 10th Amendment, which 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.’
Currently, the decision to recognize same-sex marriage rests at the state level. Because of this and because we are a union of many states that vary culturally in terms of faith and sensibilities, one state’s decision to block gay marriage should garner the same respect as another state’s decision to allow it.
Michael Stikkel is a junior computer engineering major. His column appears online weekly. He can be reached at mcstikke@syr.edu.