Shining a Light

Shining a Light on the 10th Amendment in Ohio

State sovereignty and the Tenth Amendment are getting some attention in the Buckeye State.

Ohio Rep. John Becker recently sent a letter to U.S. Congressman Brad Wenstrup in which he requested that his fellow republican initiate impeachment proceedings against Judge Timothy Black. Judge Black recently ruled (twice) that Ohio must recognize the marriage of same-sex couples despite (a) the lack of federal authority regarding the issue of marriage and (b) an amendment to Ohio’s Constitution which prohibits the state from recognizing or performing same-sex marriages.

(a) Congress has no enumerated power to regulate or define marriage. As such, the issue of marriage is reserved to the states per the Tenth Amendment of the US Constitution. Even the almighty Supreme Court admitted this in their recent opinion on DOMA.

(b) Article 15, Section 11 of the Ohio Constitution reads:

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texas-guard

The Pentagon vs Texas and Mississippi

I was contacted by a reporter from LifeSiteNews.com asking for comment regarding a news item in Texas and Mississippi. According to the Associated Press, the Texas and Mississippi National Guards “won’t give same-sex benefits at some locations,” citing state gay-marriage bans.

Setting aside my own personal view that government-issued marriage license are an affront to the peace and liberty of people from all backgrounds (and were often used in the 19th century as an attempt to prevent interracial marriage), there certainly are some important constitutional issues here.

Constitutionally-speaking, the National Guard of each state is not like a county – a simple political subdivision of the Pentagon. The Constitutional articles of note are:

Article I, Section 8, Clause 15:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

and Clause 16:

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Montgomery County, PA Endorses Nullification

Cross-posted from the Pennsylvania Tenth Amendment Center.

On Tuesday of this week, the Norristown Patch announced that same sex couples can now marry in Montgomery County, Pennsylvania.  The Patch went on to elaborate that the Montgomery County Register of Wills, Bruce Hanes, had “worked closely with the Register of Wills solicitor Michael Clarke and Montgomery County Solicitor Raymond McGarry to study ‘every aspect of the law,’” subsequent to a request for a marriage license from a same sex couple.  That couple evidently bowed out, but Hanes went public with the county’s position – saying, “I cannot ethically defend the constitutionality of Pennsylvania’s version of DOMA as I believe it to be wholly unconstitutional”.

From the Patch,

According to Hanes, he took the oath of office 19 months ago to uphold the U.S. and Pennsylvania Constitutions, and cited Article 1, Section 1, of the Pennsylvania Constitution, which provides for the rights of men, among which is “pursuing their own happiness”

So what Hanes was saying was that he believed there was a conflict between the state law and the state Constitution and when the law conflicts with the Constitution, the Constitution takes precedence.  In other words, Hanes was prepared to nullify the state DOMA law because he believed that it conflicted with the state Constitution.

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Even a Blind Squirrel Sometimes Finds a Nut

The Supreme Court just released its opinion on DOMA, and Prop 8.  The justices showed some rare wisdom here, and even applied the Constitution in ways I never expected them to.  I suppose, just when you are certain of the utter uselessness of an organization, they can perform one righteous act to make a liar out of you.

First let me explain what the Constitutional position of the federal government should be on marriage.

None.

It’s that simple. Marriage is not mentioned once in the Constitution. It is not related to an enumerated power, and as a religious institution, it is arguably forbidden for the feds to pass laws concerning it under the First Amendment.

But, I will allow one disclaimer to this position: the full faith and credit clause in Article4:

“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.”

Both gay rights activists and traditional marriage protectionists rely upon this clause to make the claim that America must either embrace or ban the practice of gay marriage across the nation.  This fight comes down to contract rights.  Gay marriage proponents ask: if marriage is a contract drawn up in one state, why is another state not bound to enforce it?   This is the same argument slave owners used to force the northern states to return runaway slaves during the ante-bellum American period.

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