Why I Oppose Gay Marriage—The Constitutional Argument
A short time ago I was engaged in a discussion that questioned the consistency of (primarily) Republicans when applying the principle of State’s Rights to various issues. In the course of that discussion the issue of same-sex marriages came up and I made the statement that I saw no inconsistency in advocating State’s Rights while at the same time striking the issue of defining marriage from the list of issues best left to the individual States. I am going to revisit the issue here because there is a nuance which may not readily be apparent.
It is true that there are a number of very good arguments supporting the notion that the individual States have the right to define the concept of marriage. The problem lies in the fact that virtually all of our rights and privileges are portable as we move from state to state. On the other hand, those restrictions which apply in one state but not in another are generally those which the individual can change his behavior to accommodate. Perhaps the most recent example involves the legalization of marijuana in Colorado and the state of Washington where, from my understanding, the individual is free to indulge himself within either of those two states, but can still be arrested for the very same behavior in any number of another states. In other words, the next state over is under no compulsion to recognize the laws of the neighboring state and the individual can make arrangements to remain complaint.
Hold on, some of you may be saying, what about the Full Faith and Credit Clause or the entitlement to “all privileges and immunities” as guaranteed by the US Constitution? Exactly, and therein lies the problem with making any issue which is not either portable or in general agreement with the laws of the other states. Here’s where I question the consistency of those who question mine. I’m one of the few, that I’m aware of, that defend the Supreme Court Decision known as “Dred Scott”. In both cases the issue is the same, if the laws of the one state conflict with the laws of another state, which of those laws should be recognized by the state in which the alleged violation took place? The Constitution certainly can be interpreted as requiring that the free state return the slave to the slave owner and that a same sex marriage in one state must be recognized by the legal system in another. We fought a war to determine the answer on the issue of whether certain rights are portable and the answer after much bloodshed and destruction was basically that non-portable rights must be determined at the federal level to prevent any further misunderstandings.
With that in mind, the question becomes whether same sex marriage is a right which is guaranteed under the US Constitution. Once again, that question has already been answered. We need only look at the circumstances related to the territory of Utah becoming a state to see that the position of all the several states was that the definition of marriage was restricted to the joining of one man and one woman. Those in Utah were required to change their religious and legal positions prior to entering into the Union to reflect that singular view and to be in compliance with the legal and religious systems of every other state. It was important, at the time, to make that a condition of statehood precisely because had Utah joined the Union without it every other state would have been obligated to recognize polygamous relationships.
There are other reasons which argue against the recognition of same sex marriages, but this article is intended to focus only on the legal and constitutional ramifications.
Thank you….Comments are not only welcomed, but invited.