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OpEdNews Op Eds    H2'ed 4/16/13

Gay Marriage and the Constitution

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The power and authority of the Supreme Court of the United States to review acts and actions of the other two branches of the Federal government is nowhere to be found in Article III of the Constitution, the one which defines and describes the Federal judicial branch of government. It was the fourth United States Chief Justice, John Marshall, and colleagues on the Court during his long tenure (1831-1835), who essentially made it up as they went along, in a series of cases ranging from Marbury v. Madison through McCulloch v. Maryland. 

In the first, most significant, case, Marshall engaged in some very lawyerly if-then, if-then reasoning to accrue that power to the Court.  Without going into the factual details of the case, we can say that the central feature of Marshall's decision was its consideration of a power granted to the Court by the Congress to hear certain original (trial) legal actions.  However, Marshall noted that the Constitution, with certain very well-defined exceptions, limits the Supreme Court to appellate review, not original powers.  Therefore, he declared that the law under which the case had been brought was "unconstitutional," a phrase that nowhere appears in the Constitution.  And the action, as it happened of Mr. Marbury versus Mr. Madison, was dismissed.

There was a fair degree of political kerfuffling about at the time over what had happened.  President Thomas Jefferson, even though the decision in the particular case benefitted him and his Secretary of State James Madison, did not like what saw Marshall doing.  Nevertheless, he took no significant action against Marshall's Court and over time the precedents established by it were accepted all "round.  But, one central feature of the set of cases that juridically and politically secured the Court's power to review, not just the actions of the Federal government for their Constitutionality, but those of the state governments as well, was that the decisions of the Court in such matters were to be made on Constitutional grounds.  Did a particular action of the Federal Congress or Executive Branch, or of any of the three branches of the government of any state, violate one or more provisions of the Constitution of the United States?  That, clearly, in Marshall's view was what Supreme Court review was to concern itself with.  Which brings us to the "Proposition 8" and "Defense of Marriage Act" cases presently under consideration at the Court.

Under California's "Initiative and Referendum" system, "Proposition 8" overturned a decision by the California State Supreme Court that gay marriage is legal, in California.  The so-called "Defense of Marriage Act" (DOMA) denies a whole series of Federal benefits to gay couples, even when they are legally married under the laws of a particular state.  DOMA has been declared unconstitutional up the Federal trial and appeals courts ladder and the Obama Administration refused to defend it before the Supreme Court on the grounds that it is indeed unconstitutional.  Nevertheless, the House Republican majority took it on itself to do just that.

The cases are distinct and it is certainly far from clear, after the oral arguments were held for both on March 26 and 27, 2013, what the right-wing, Catholic, majority on the Court will do.  What is clear is that many of the arguments that are being made both for and against legalizing gay marriage and/or granting the full protection of Federal law to gay couples in those states in which gay marriage is legal, have nothing to do with the Constitution and thus have nothing to do with the role that Chief Justice Marshall, rightly or wrongly, defined for the Court.

On the "pro" side we hear much about fairness, and justice, and love, and family, and children.  As someone who very happily spent his teen-age years with two mommies in the 1950s (no less) I am very sympathetic to those arguments.  But they have nothing to do with the Constitution.  On the "anti" side we hear much about "traditional marriage" and how allowing gay marriage will somehow "destroy the institution of marriage," although explanations of exactly how that would happen are never clearly given. 

What is made clear, over and over again, from leaders of the anti-gay marriage movement ranging from Speaker of the House John Boehner to the so-called National Organization for Marriage is that their positions are based on religious belief and a particular interpretation of the Christian Bible.  Boehner had spoken of never changing his position on the matter because that is what his church tells him it should be.  In the opening sentence of their mission statement the NOM states that they have: "a mission to protect marriage and the faith communities that sustain it [emphasis added]."  Their leader, Brian Brown, talks about how his position is drawn from "Scripture" and "biblical views of marriage" (1).

Of course any church is entitled to formulate and abide by its own rules for marriage, and if they don't want to countenance or recognize same-sex marriage, under the First Amendment they love to denigrate so much, that is their right.  But then there is the institution of marriage (with provisions for its legal dissolution) that is found in the civil law that exists on the books of every one of the 50 states.  This institution has absolutely nothing to do with religion any more than state motor vehicle laws do.  In every state a couple can walk into the office of an civil official endowed by that state's law to perform a marriage ceremony and certify that it is licensable under the law, and get married.  Unless, that is, in most states, they happen to be of the same sex.

And so, if Chief Justice Marshall's definition of what the Court's powers are based upon is correct, the central issue before the Court is not justice or fairness, it is not whether or not gay marriage is becoming more acceptable nationally (Scalia), or whether, ohmygosh, should the Court rule that Prop. 8 and/or DOMA are unconstitutional would those rulings then have to apply to all the states (Roberts), or whether or not 40,000 children in California should have two legally married parents (Kennedy). 

And so, there are only two issues that should be considered here. Both are Constitutional. The first is whether, given the "no religious establishment" clause of the First Amendment, a definition of marriage that is clearly based on religious belief, according to its proponents, should, indeed can, be granted any recognition under the law at all (other than to protect its use for religious weddings by those who hold to that religious belief under the "free exercise" provision of the First).  The second is, given the fact that each of the 50 states has a large body of civil law concerning marriage, whether or not the "equal protection" clause of the 14th Amendment applies. 

We are talking about religious determination of civil law and practice here.  We are talking about equal protection under the law here.   We are talking here about ending yet another major element of second-class citizenship, with which this country has been so burdened in so many different arenas since its founding, which the equal protection clause clearly prohibits.  However, religious determinism/authoritarianism is on the march in our country.  It must be stopped before it is too late (2).  When the issue is before the Supreme Court it is the defense of the Constitution, of the 1st and 14th Amendments, that should be at the center of our side's arguments, and nothing else.



1. Solberg, S.G., "," The New York Times, 03/23/us/politics/brian-brown-fights-same-sex-marriage-with-zeal-and-strategy.html?pagewanted=all&_r=0

2. Jonas, S., The 15% Solution: How the Republican Religious Right Took Control of the U.S., 1981-2022: A futuristic Novel, Brewster, NY, Trepper & Katz Impact Books, Punto Press Publishing, 2013, at Amazon: Solution-Steve-Jonas/dp/0984026347/ref=sr_1_6?s=books&ie=UTF8&qid=1365113393&sr=1-6&keywords=The+15%25+Solution.

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Steven Jonas, MD, MPH, MS is a Professor Emeritus of Preventive Medicine at StonyBrookMedicine (NY) and author/co-author/editor/co-editor of over 35 books. In addition to his position on OpEdNews as a ├ éČ┼"Trusted Author,├ éČ Ł he is a Senior (more...)
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