Within my circle of friends, I could quite easily be labeled as "liberal" for some of the things I am about to write. On the other hand, to many in our society I will still be a pig-headed, ignorant, intolerant conservative. I am about to put myself in a very precarious position, "No Man's Land."
This week, the United States Supreme Court is beginning another session, but two cases in particular are catching the public's attention: Hollingsworth v. Perry and United States v. Windsor. The first of these centered on California's Proposition 8, while the second deals with PL 104-199, better known as the Defense of Marriage Act.
Since the arguments in were the first heard in this session, I will give my views on this first. Following is the full text of Proposition 8.
Section I. Title
This measure shall be known and may be cited as the "California Marriage Protection Act."
Section 2. Article I. Section 7.5 is added to the California Constitution, to read:
Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.
At first glance, there is nothing wrong with this. I am a big supporter of traditional marriage. I support many of the ideals that this law is based on. I would love to see our nation define marriage as a union between one man and one woman.
I hold a strict interpretation of our Constitution. I have a deep respect for the wisdom of the men that labored so deeply to see our current constitution come to fruition. The story of how our constitution came to be is fantastic, and filled with so many compromises that in all actuality kept our country from breaking apart. Now we take these compromises for granted. We do not try to understand why our government was structured a certain way. One of these great compromises was the addition of a bill of rights shortly after ratification, and the ninth and tenth amendments made sure to protect the rights of both the citizens and of state governments from encroachment from a more powerful federal government than the nation had experienced previously under the Articles of Confederation (more on this later.) Nevertheless, these great men also could foresee situations when a state might not necessarily agree with another, and as such might not honor decisions and certifications made in the other state. A well-understood modern example would be a driver's license. Each state has different qualifications a person must meet in order to obtain a driver's license. Because of this, Minnesota may decide that since drivers in Missouri do not have to take a driver's education course, Missouri drivers do not deserve the right to drive in Minnesota. Then when a person with a valid Missouri driver's license is pulled over while driving in Minnesota, this driver could be charged with driving without a valid license. As one can see, this could cause a multitude of problems, and this example could also apply to contracts, wills, and basically any other document that carries legal weight, including marriage certificates. To avoid any of these problems, our founding fathers included Article IV, Section I of the Constitution:
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.
This part of the Constitution can applied to certain things such as driver's licenses and marriage certificates, so that a marriage certificate or driver's license issued in Maine must also be recognized in all other forty-nine states.
All this to prove that California's Proposition 8 is unconstitutional. "Only marriage between a man and a woman is valid or recognized in California." Unfortunately, several states (including California) have issued same-sex marriage licenses. California (and all other forty-nine states) is obligated under the United States Constitution to recognize these marriage licenses as valid. Article IV leave no room for a state to declare another state's "public Acts, Records, and judicial Proceedings" invalid.
This very same logic led me to (painfully) vote against the Minnesota Marriage Amendment: "Only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota."
Next on the table is the case of United States v. Windsor. Again I must reiterate that I completely an unashamedly support traditional heterosexual marriage. The main meat of the Defense of Marriage Act states:
Section 2. Powers reserved to the states
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Section 3. Definition of marriage
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
Again at first glance, there is nothing bad here. I still support many of the ideals behind this law. But alas, when compared with the Constitution, which coincidentally is the supreme law of our nation, several key problems arise. In the previous sections, I discussed the importance of Article IV Section I, better known as the "Full Faith and Credit" clause. I am now going to compare this well-known clause with section 2 of DOMA (Defense of Marriage Act.)
No State . . . shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State.
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.
Notice anything odd? I thought so. The language is incredibly similar, and I cannot believe this is a coincidence. DOMA is saying that when it comes to same-sex marriages, Article IV, Section I of the United States Constitution does not matter! I do not know what you may think, but this is the epitome of unconstitutional. There is no room for debate here. The near mirror image of the language is blatant enough to make it as hard to hide as hiding Mt. Everest in the middle of Illinois.
In conclusion, the current marriage debate does not look good for conservatives. 39 states have some law in effect defining marriage in the traditional sense, but unfortunately, most of these states have laws that are similar to California's in how these states not only will not grant same-sex marriage licenses, but also will not recognize legitimate same-sex marriage licenses granted in other states.
Yes, we need to stand up and fight for traditional marriage, but we also need to understand that we have a legal framework that we must work in (the Constitution.) If we begin to work outside this framework (DOMA, Proposition 8, etc.,) we must be willing to see the consequences, which will likely (and rightly) be the overturning of these unconstitutional laws. I do not support same-sex marriage. I cannot make this clear enough. However, I also place a high priority on accomplishing goals in a legal manner.
We need to support passing marriage laws that define what marriage is, but do not give the state leeway to determine valid marriage licenses from other states (including same-sex marriage licenses) to be invalid or unrecognized in that state.
Please feel free to comment or message me with you thoughts about this. I would really appreciate it, so long as you give some level of respect and don't use it as a chance to insult myself or my beliefs.
Editor's note:
I originally intended to make several remarks about Section 3 of DOMA, but due to needing to go to bed immediately after writing, i scrapped this idea temporarily, but I do intend to update the post to include these remarks.
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