by Jason Kuznicki, CATO Institute
Of course gay marriage should be left to the states. Indeed, all marriage should be left to the states. Search the U.S. Constitution from start to finish, and you will find no reference whatsoever to marriage. You will, however, find the 10th Amendment, which reads as follows: “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.”
Marriage is not commerce, war, or taxation. It is unrelated to money, the post office, the patent system, or any of the other enumerated powers of the federal government. Its regulation is neither necessary nor proper in pursuit of those powers.
At the drafting of the Constitution, the states all had marriage laws of one kind or another. There were wide disparities among them, both then and now, and such disparities have existed at all times in between.
The founders had no desire to settle such matters, and they did not wish a future Congress to do so either. The Constitution they wrote left only two choices: Either allow the states to regulate marriage (with, perhaps, federal consequences to follow) — or else return marriage to the people, to individuals, families, churches, and communities. Either approach would be consistent with the Constitution. The Defense of Marriage Act, however, is not.
Speaking personally for a moment, I am in a same-sex marriage. Some states recognize it, including my home state of Maryland. I am happy that they do, and I wish more of them would. But just as Congress can’t prohibit same sex marriage, I must conclude that Congress can’t establish it, either.
Whether the states must all recognize same sex marriages as a matter of civil rights law, unrelated to the 10th Amendment, is a question the Supreme Court may soon address. But I find it implausible that the Court would do so now. The Prop. 8 case by no means requires it. And it’s still less plausible that the Court would make the sweeping judgment required to say yes. In the meantime, I am content both to support same sex marriage and to advocate for it on the state level, where public opinion is rapidly shifting in its favor, and where the good fight is still to be fought.
This article appeared on US News and World Report Online on December 17, 2012.
“Marriage is not commerce, war, or taxation. It is unrelated to money, the post office, the patent system, or any of the other enumerated powers of the federal government.” No, it’s not. It is a fundamental Human Right that supersedes all other laws, and is one of those rights protected and defined under the 9th Amendment.
Loving v Virgina ring a bell? Per the 14th, the States cannot define marriage in any way that would deny a single American, consenting adult from marrying. Bans on interracial marriage didn’t even do that, yet they were found Unconstitutional. Defining marriage as between a man and a woman denies Intersex people the right to marry at all. Not to mention, if marriage is only a State’s issue, then who decides spousal benefits for military personnel? The State they were married in, the State they are stationed in, or the Federal government? Finally, consider that no State has the authority to refuse to recognize a legal marriage performed in another country, regardless if the marriage would be legal here. A brother and sister, or perhaps, a 50 year old man and a 12 year old girl.
We know for certain now that the Supreme Court is political so the betting is that they will not make a sweeping decision concerning gay marriage, but I think they could using the XIV Amendment’s equal protection under the law.