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Why I Oppose Gay Marriage—The Constitutional Argument

November 19, 2012

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.


From → Liberal Lies

  1. Interesting article, although fallacious in some ways. Gun permits are just one of many examples of non-portability, and the right to bear arms is a right expressly given in the US Constitution, although states (and cities) preserve the right to license and monitor. Also, the fact that same sex marriage rights are not portable is primarily due to the 1996 Defense of Marriage Act, enacted by Congress and found to be unconstitutional in 8 cases in appellate and district courts. SCOTUS is apparently determining if they will hear these cases on November 30, 2012 in their private conference, so your contention that “it has already been decided” based on polygamy decisions from the nineteenth century is somewhat overreaching. Also, the US government did not require a religious re-thinking of polygamy in order to become a state, they just required it could not be LEGAL. That would most certainly be unconstitutional to order a change in religious dogma. Perhaps I did not understand your line of reasoning. In the case of making rights portable to all 50 states, then the determining factor would most likely err on the side of promoting civil rights, not taking rights away from those already given in 9 states and DC. Constitutional law has, generally, been used to expand rights of the citizenry, rather than to rescind said rights. Thoughts????

    • Thank you for your comment and your thoughts.

      Although we could argue over the constitutionality of various gun laws, I’m not sure why you believe that in agreeing with your suggestion that gun rights are not portable I would be negating my original argument. I used the legalization of marijuana as my example. On the other hand, my alternative is to assume from your comment that you are pointing out that the second amendment is a blanket statement which clearly states the right that every citizen, regardless of his state of origin has the right to carry some kind of firearm. If that’s the case, I don’t disagree and thus also agree that it is, in fact, portable, regardless of how each state decides to legislate on the issue.

      On the subject of same sex marriages being portable, the fact that I believe they are, as a matter of constitutionality, is the reason that I also suggest that the issue must be decided at the Federal Level. That being the point of the article, I apparently did not do a very good job of making that clear. Although I plan on perhaps two more articles looking at the subject from different perspectives, the point here was that it is the portability of the union that makes it an issue. In just about every other case, other than slavery, the portable rights are those already agreed to in the constitution while the non-portable “rights” are those determined on a state by state basis and thus they cannot be invoked in a state which does not recognize them. The individual must always be in compliance with the laws of the state within which he resides, no matter how momentarily, and laws of his state of origin thus do not apply. Don’t mean to repeat myself, but apparently I needed to clarify.

      The real problem with the whole “same sex” marriage issue is really two fold. The requirement that those states which do not wish to recognize it are forced to do so and the fact that if it weren’t for big government and governmental intervention it probably wouldn’t be an issue in the first place. I see a certain irony in the fact that gays are looking to big government to solve a problem caused by big government in the first place. It’s also true, but counter intuitive, that the progressive support for gay marriage is a part of the campaign to discredit and destroy the very institution to which the gays are so desperately working to have access. In this case I see them as unwitting accomplices of a movement they truly may not understand.

      I don’t see my statement suggesting that the issue has already been decided as “overreaching”, although this has no bearing on how I might predict the rogue court will rule should it decide to hear a case addressing the issue. I’m afraid I believe you are mistaken when you suggest that the only issue being addressed prior to Utah being admitted as a state was the legal ramifications of polygamy. I suggest if you do some research you will find that the Mormon Church actually did change its’ dogma to fall in line with the value systems of all the other previously admitted states. One woman…it was not request, it was a requirement.

      In terms of “civil rights”, the point is that whether the right to marry one of the same sex is a civil right remains to be determined. If so, there is no doubt in my mind that polygamy will be the next definition to be included, followed by younger and younger ages at which individuals will be legally allowed to marry.

      Much of that I plan on addressing further in an article yet to be published, but thanks again for your comment, and I look forward to any response.

      I might add, this has nothing to do with whether, for example, you are gay or not. There is a difference between being anti-gay and anti-gay marriage.

  2. Interesting points, however the slippery slope argument just does not cut it (polygamy, lowering age of consent). I also suspicious of our term “rogue court”. I usually find that term, as well as “activist judges” are used those who oppose a given court decision. Nevertheless, your arguments appear to be somewhat convoluted and obscure in order to prove that same sex marriage is not a good thing. When all is said and done, the common denominator for such arguments is animus to homosexuals. I don’t believe one can claim to be pro-gay and anti-gay-marriage at the same time unless it is motivated by religion or discomfort. THank you for a lively discussion.

    • Perhaps you would consider the fact that the validity of the slippery slope argument is proved by the fact that same sex marriages are now legal in some states.

      I’d also have to suggest that I find that those who argue against the terms “rogue court” and “activist judges” are generally in favor of the rulings which are handed down by either, if one can even have the one without the other.

      I would obviously disagree that my arguments are either convoluted or obscure, much less motivated by religion or discomfort. One of the reason I separated the legal argument from the rest was in hope the hope that the discussion might focus on the issue rather than any perceived animus towards anyone.

      I agree that you “don’t believe that one can claim to be pro-gay and anti-gay marriage”. On the other hand, the interesting thing is I never claimed to be “pro-gay” and yet you seem to suggest that there is no middle ground between being pro- and anti-gay. It articulates the pro-gay position rather well.

      I return the salutations and thank you for taking the time to provide your opinion.

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