The Constitutional Case for Same-Sex Marriage

As the Supreme Court will hear oral arguments this week on both Hollingsworth v. Perry - the challenge to California’s Proposition 8, which banned gay marriage in the state - and U.S. v. Windsor - the challenge to the 1996 Defense of Marriage Act (DOMA), which recognized marriage at the federal level as between a man and a woman – state and federal laws effecting marriage equality face their first legal confrontation with the Judicial Branch. Herein I make the constitutional case for marriage equality that respects both individual and religious liberties.

Last week, Senator Rand Paul proposed removing federal recognition of marriage - for everyone – telling Bob Costa at the National Review:

“I’m an old-fashioned traditionalist. I believe in the historic and religious definition of marriage. That being said, I’m not for eliminating contracts between adults. I think there are ways to make the tax code more neutral, so it doesn’t mention marriage. Then we don’t have to redefine what marriage is; we just don’t have marriage in the tax code.”

Senator Paul elaborated his position yesterday on Fox News Sunday, saying he has “always said that the states have the right to decide.” Senator Rob Portman – one of DOMA’s original co-sponsors - went a step further than Senator Paul last week in support of same-sex Marriage, at the revelation that his son is gay, stating:

“I have come to believe that if two people are prepared to make a lifetime commitment to love and care for each other in good times and in bad, the government shouldn’t deny them the opportunity to get married.”

There is a difference here: essentially Paul’s proposal regards all marriages as civil unions, and Portman’s proposal is to recognize same-sex unions as marriage… Which brings us to the belabored argument over two differing definitions of marriage.

Portman’s proposal honors marriages as equal, whereas in Paul’s proposal, marriage is a sacred institution, and a union is a secular one. This is aligned with the position I used to hold: that is, civil unions everywhere and marriages in states that allowed them. Basically, I supported the same status quo our President recently evolved to support. While I always understood that granting benefits to one group while denying them to another was both morally wrong and unconstitutional, it took a while to fully understand how that applied to marriage.

Looking Back to the Constitution

The states are wonderful laboratories for policy, and matters not covered in Article I, Section 8 of the U.S. Constitution are left to the states, in accordance with the 10th Amendment – indeed, most matters can be handled at even lower levels, as de Tocqueville described in Democracy in America.

But Article 1, Section 8 enumerates what powers Congress has, not what rights we the people retain, and the 10th Amendment grants delegation of powers – not rights – to the states. The 9th Amendment protects certain rights of the people, stating:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

States have powers of law, not rights; individuals have rights. Having different rights under the law for different groups of people becomes a “separate but equal” status, with “marriage for straights and unions for gays” basically constituting a Jim Crow law. If the Supreme Court finds that “equal protection of the laws” as described in the 14th Amendment extends to consenting adults wishing to enter into marriage at religious institutions that permit it, both DOMA and state laws defining marriage might be overturned, as same-sex marriage will be considered a civil right. It should be noted here that the Supreme Court has referred to marriage as a ‘right’ 14 times since 1880.

By outlawing same-sex marriage, the states are essentially forbidding religious institutions to marry whom they wish. Furthermore, any claims the states make to outlaw marriage on religious terms violates the first ten words of the 1st Amendment: “Congress shall make no law respecting an establishment of religion.” As Congress - restrained by Article 1, Section 8 and the 1st and 14th Amendments - has no power to say who can marry whom, it’s hard to justify – considering the 9th and 10th Amendments - how the states can, either. Bear in mind, states also once claimed the right to say who could attend certain schools based on race.

Considering all this, a second-class status for marriage is untenable, and such divisions of freedom should not be maintained, even if marriage equality under law is offensive to some.

Boundaries Protecting Liberty

I would like to see government completely out of marriage, leaving these matters totally up to religious institutions; but until it is, two tiers of rights should not exist under law. I don’t believe, as Rand Paul suggests, that government can totally work itself out of marriage; for more on this, see this outstanding piece by Doug Mataconis. Society must deal with the reality it has, not the ideal society it envisions; most of civil society would welcome and honor new contracts between consenting adults - with the proper boundaries – to protect both individual and religious liberties.

Same-sex marriage occupies a gray area where civil rights and civil liberties collide, with civil liberties defined by what government cannot do to you, and civil rights defined by what government should do to protect those civil liberties. We should not be afraid of government protecting the civil liberties of certain groups liable to discrimination. But I neither recommend a constitutional amendment that provides any definition of marriage, as I believe that would be a usurpation of federal power.

At the far end on the civil rights side of the spectrum is pure egalitarianism, something we should avoid.  The most fervent proponents of same sex marriage want gays to be able to get married anywhere straights can, thereby coercing churches to marry everyone who wishes to be married; this is also untenable. While this debate is an old one, these protections were codified in Title II of the Civil Rights Act; if churches are considered private clubs under the law, they are exempt from anti-discrimination laws, and will continue to have discretion over whom they marry.

At the end of the day, either religious institutions have marriage discretion, or they don’t. Protecting the religious liberties of churches applies both to churches who want to marry same-sex couples, and those that don’t.


Finally, on a personal note: Supporting government acquiescence in marriage is not equivalent to supporting same-sex marriage. I believe religious beliefs are not persuasive if evangelized by force of law, thrust upon the general population, whether in support or opposition of other beliefs… And neither did Jesus. I do not, and would not, attend a church that conducts same-sex marriages. But I will respect same-sex marriages as equal, in earthly terms, to my own.

This was prayerfully written, and I pray it is thoughtfully received. For a comprehensive collection of the arguments being made both for and against Same Sex Marriage, see the “Same-Sex Marriage at the Supreme Court: A Scorecard” by Walter Olson at the Cato Institute.

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