THE CONSTITUTION AND MARRIAGE RIGHTS

By Zachary Gleason
zack@zgleason.com

November 17, 2008

One of the arguments for the same sex marriage debate is that according to the U.S. Constitution everyone should be treated equal, regardless of race, religion, creed, color, or sexual preference. The Constitution is often cited as the "legal" basis of same sex marriage. It is a constitutional right to marry "anyone" you please, right? The overlooked fact is that the constitution does not address marriage. To say the constitution protects an individual’s rights to marry whom they please is simply incorrect and shows that the person making this argument has probably never read the constitution, at least in a very long time. Equality in the constitution is addressed in the statement that no citizen will be denied "equal protection of the laws." The constitution does not say what all the laws will be, it simply states that all citizens will be protected equally under the law. The constitution does not protect people FROM laws, it protects people ACCORDING to laws.

One attribute of the constitution that makes it one of the most powerful and influential documents in the world is the fact that it was written, at least originally, as a document to govern the government, not to govern the people. The constitution is simple in the fact that it lays out rules for governing and puts in place relatively simple checks and balances on elected and unelected officials to prevent ill intended "leaders" from gaining despotic power over the people. The fact that the constitution lays out laws for the government of the people, and not the people itself, is one of the reasons for its power and part of the reason the United States became and remains the greatest country in the world.

How DOES the constitution relate to the same sex marriage issue? The constitution specifically outlines the “Powers of Congress” in Section 8, none of which are of a social nature. Powers not given to congress were reserved for the states by the 10th Amendment in 1791, the entire amendment reads, “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.” The constitution is very clear in regards to the fact that unless a power is specifically “delegated” to congress then that power lies within the states. By the fact that social issues were omitted from the constitution, those powers are of a nature to be decided by the states, in ways which best reflect the voice of the people in those states. In relation to the same sex marriage issue the constitution has thankfully not been completely tossed out the door. The issue has remained in the states. During the presidential election the topic of same sex marriage was brought up in error frequently, the President of the United States, or congress has nothing to do with the issue, and never should. Any federal official that thinks it is their place to attempt to push laws through congress that have a social nature should read the constitution, sadly they are in direct disregard for the constitution as it pertains to the ruling of our nation.

Additionally, some proponents of same sex marriage believe that the 1st amendment protects the right of same sex marriage. The 1st amendment is the only other part of the constitution that a person might, lacking judgment and understanding, attempt to twist as a way to make their point. The part of the 1st Amendment in question reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”. Same sex marriage advocates say that preventing same sex marriage is the same as prohibiting the free exercise of religion. The fact is that in any state in the union two consenting adults of any sex can be married by and according to their religion. In fact, there are same sex religious unions taking place every day, no one is stopping them, and no one should care from a legal stand point. The biggest problem with legalizing same sex marriage is that action would not only be a misunderstanding of what it means to allow the free exercise of a religion, but the action would actually violate the 1st amendment in the fact that it makes a federal law respecting an establishment of religion. Once again, the issue is left for the states. Marriage in fact has always been a state issue. One size fits all social laws from the federal government are thankfully prohibited by the constitution.

Hopefully we can all come to grips with the fact that according to the constitution the same sex marriage issue is a state issue. When a state enacts laws regarding the same sex marriage issue the constitution steps in to make sure that everyon is treated equally according to those laws, and that is it. The laws regarding marriage for most states, whether by statute or otherwise are built around the concept that two consenting human adults, not closely related, not of the same sex can be married according to the law. Whether you are gay or straight the law applies in the same way. According to the law a person cannot marry someone of the same sex, whether they want to or not. Is it "unfair" that the law lies within the personal preference of one group and not another? Perhaps, but it is still the law and it applies to everyon equally. There are laws I think are unfair of which I am morally against; however, my objection does not give me a "right" to have the law apply to me or my group of friends in a different way. Hence, we go through the democratic process to determine what the law will be and move on, perhaps readressing the laws again as time goes on. When the voice of the people of any given state decides as a majority in that state that the law must be changed, then I will personally respect that law, even if it makes me mad, even if I think it is unfair, even if it hurts my feelings, even if I think it is wrong, stupid, or the wrong direction.

When judges decide to overturn laws put in place by the voice of the people they disregard the law and the constitution, they weaken the democratic process, and they set a very dangerous prescident for our country's governance. Unfortunately judges do this occasionally, but the power of the people remains in their ability to elect those who will govern. I am grateful for this country and the democratic process which remains. I do not blame "bad" politicians or judges for the things I disagree with because the power lies with us to put those people in their positions of power or to take them out. Because that power, the power of the people, remains in tact, America is still the greatest country in the world.