Gay Marriage and the Supreme Court, part 2

An acquaintance once told me that “the issue is never the issue.” Very often, the issue involves much more than the initial issue. The Supreme Court case, Obergefell vs. Hodges, is a clear example of this.

In the article yesterday, we walked through the conflict in this case, some of the arguments and the premises on which those arguments are based. Yet there is so much more to consider. In addition to the matters of the First and Fourteenth Amendments, one still must consider the Tenth Amendment.

The Tenth Amendment to The Constitution reads: “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.”

This amendment is often considered the “state’s rights” amendment. It’s the “go to” amendment for Tea Party activists who resent federal government overreach. In order to understand exactly what the state’s rights are, however, one must be quite familiar with the federal Constitution. Since this amendment clearly gives control to the states over matters NOT listed within the US Constitution, then one must know what powers are given to the federal government therein.

For those who do not have their pocket Constitution handy, here is a brief synopsis as to what each article involves.

  • Article I discusses Congress (the legislative branch), how they are elected, who is elected, and what laws they can pass.
  • Article II contains information regarding the president (executive branch), how a president is elected, who may be elected, and a job description.
  • Article III is regarding the Supreme Court and lower federal courts (judicial branch), and a job description for these courts.
  • Article IV deals with the states and the citizens thereof, how the states work with one another, and the governments within the states.
  • Article V involves the two methods for amending The Constitution.
  • Article VI discusses how we observe treaties with foreign entities and requires that all laws must be upheld by those who serve in the legislative branches at the state and federal levels.
  • Article VII indicates how this Constitution had to be ratified.

Using only this information, one should grasp that Article I would be a good place to go to determine the laws that Congress might pass. Anything not included in Article I would then be left up to the several states. Since Article I (specifically Section 8) says absolutely NOTHING regarding laws concerning marriage, it is left up to the states to determine where they will stand on this issue. This is why some states have legalized gay marriage and others have not.

This leads to the question as to whether this issue should really be a matter for the states to decide. Are the states capable of dealing with this matter? What if all the states don’t agree? How will that affect people who move from state to state?

First, because the issue is not mentioned anywhere in The Constitution, it is up to the states and the people therein to address the matter. Considering that states have dealt with issues such as healthcare and education for decades, they are easily able to handle this matter, too. Of course, all of the states will not agree on the matter, just as all the states do not agree on education and healthcare situations either.

This brings us to Article IV, Section 1, the “full faith and credit clause.” This is the clause that requires that each of the states honor every legally binding contract or ruling from every other state. It is why a marriage performed in any one state is honored in every other state. If this clause in The Constitution is referenced in the ruling, every state will be required to honor a gay marriage performed in Massachusetts or any other state in which gay marriage has been codified.

So then, what is to prevent us from legalizing gay marriage in all 50 states? Will the Supreme Court uphold the amendments that were passed by the citizens of Ohio, Michigan, Kentucky, and Tennessee or will they be overturned because gay marriage is legal in other states? Will the 9 justices on this high court overturn something so basic that the founding fathers did not even see a need to include it in The Constitution, and instead allow something so abhorrent that at least four states have passed amendments standing against it to become the law of the land? Will the people be prevented from speaking against gay marriage just as we are prevented from speaking against radical Islam? Will homosexuals become a protected class of citizens and receive more legal protections than heterosexuals do? Will this lead to other types of “marriage” such as between more than two partners or a human partner and partner of another species? What will the ramifications of this be on the children of one or more of the partners? God only knows.

The issue is never the issue. In this matter, the issue is about so very much more.

~Temerity Dowell

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