Daily Archives: June 17, 2008

California Gay Marriages a Constitutional Dilemma

At 5:01 P.M. on Monday, the state of California began issuing marriage licenses to gays. The California Supreme Court last month overruled an earlier decision by the California Court of Appeals and a California law to, in effect; write new law extending the “right” of marriage to same-sex couples. In doing so, the laws nationwide concerning marriage were thrown into turmoil.

Prior to the California ruling, only one other state recognized marriage between same-sex couples. Massachusetts handed down a similar ruling some time ago for residents of that state. The difference between the two states is that Massachusetts only extended the “right” to residents of Massachusetts, while California’s court allows marriages between gay couples from other states as well.

In 1996, President Bill Clinton signed the Defense of Marriage Act (DOMA), which defined marriage as the union between one man and one woman. A further provision of the bill protected states not recognizing same-sex marriage from being forced to do so. In addition to the federal DOMA, forty other states have similar laws restricting marriage to one-man one woman.

In the California ruling, the court overturned more than six thousand years of recorded history as well as the will of the majority of the people in California. It also set the stage for a protracted legal battle that will ultimately reach the U.S. Supreme Court. If recent Supreme Court actions are any indication, there is a good chance the Supremes will uphold the California Court which could make same-sex marriages the law of the land.

In fact, short of a preemptive amendment to the Constitution it is difficult to see how the Supreme Court could rule otherwise. The Constitution is silent on the subject of marriage. Since the definition of marriage is not one of the enumerated powers given to Congress by the Constitution, that power is automatically “reserved to the states and to the people” by the Tenth Amendment.

Normally if the California Legislature passed a law legalizing gay marriage, then gay marriages would be legal in California, and they would not be unconstitutional under the U.S. Constitution. California seldom does anything normally, however. In California, there is the “ballot initiative” which allows the majority of the people to make law and even amend the state constitution by voting for ballot initiatives concerning any issue.

In this case, the Legislature did pass a law authorizing same-sex marriage, but it was vetoed by the Governor. The voters of California subsequently passed a ballot initiative outlawing same-sex marriages. This is the action overturned by the California Supreme Court. Another initiative is planned for November which would change the California Constitution making such marriages illegal. Meanwhile thousands of gay couples from all over the country are expected to flock to California to get married. Many will return to their home states and demand recognition for their marriage status. That is what creates the problem for the rest of us.

Article IV, Section 1 of the U.S. Constitution says:

“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.”

Section 2 says:

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

Civil marriage is a privilege, not a right. Nations and states recognized long ago the importance of stable families in the rearing and training of future citizens. They also recognized that the best arrangement for families in rearing children was a father and a mother legally bound together in marriage. To help promote a stable family unit, governments instituted civil marriage and afforded special privileges to its participants.

A civil marriage becomes official when a duly authorized license or document is returned to the proper government official—usually a county clerk—properly signed and witnessed by a bride and groom and a person authorized to perform marriages. There are no prescribed ceremonies or rituals that have to be performed in order for the marriage to be valid. As soon as a certificate of marriage is filed with the proper government authority, the Civil marriage becomes official.

The only way to protect the sanctity of marriage and the traditional family unit is to amend the Constitution identifying civil marriage as between a man and a woman. The longer an attempted amendment is delayed the more difficult it will become to get it passed and ratified by the required number of states. We can expect little if any support from our presidential candidates.

A statement issued by the Obama campaign says, “Barack Obama has always believed that same-sex couples should enjoy equal rights under the law, and he will continue to fight for civil unions as president. He respects the decision of the California Supreme Court, and continues to believe that states should make their own decisions when it comes to the issue of marriage.”

SEN. John McCain has said he is committed to “the unique status and sanctity of marriage between a man and a woman”, yet he voted against a proposed amendment to the U.S. Constitution which defines marriage only as the union of a man and a woman. He also supports individual states’ rights to regulate and determine the status of marriage within those states.

Unless the American people demand overwhelmingly a marriage amendment, it is not likely to happen. If same-sex marriages are placed on the same level as heterosexual marriages nationwide it could have a devastating effect on our culture and further jeopardize the future of America, as we know it.

Home Page