Constitution: Legality behind marriage

The following is an article that has been reposted from The New Civil Rights Movement, titled “Does the U.S. Constitution Already Make Gay Marriage Legal?” It makes some extremely interesting points about precedent, but I wonder if they had been used before but have failed, because they seem to be extremely persuasive to me.


Recent advances in gay marriage have created an interesting – and I use that term generously – cornucopia of marriage situations. In California, gay marriage was illegal, until May, when the California Supreme Court deemed any ban against same-sex marriage unconstitutional. That allowed 18,000 couples to wed – until Prop. 8 was passed, overruling the California Supreme Court and making same-sex marriage, essentially, illegal once again. But there are still 18,000 same-sex couples in California who are married and their marriages remain legal.

Iowa, Massachusetts, Connecticut, Vermont, New Hampshire and Maine have all moved to support marriage equality. So, what happens if one of those 18,000 couples moves to, say, Massachusetts? Well, aside from having better access to lobster, nothing. What happens if a promotion takes them to, say, New York? Again, nothing, because New York, while not enabled to perform same-sex marriages, still recognizes them from other jurisdictions. But, if that couple moves to New Jersey, voila! They are not married; they do not receive legal recognition of their marriage by the state. Crazy, huh?

In June 0f 1958, Mildred Jeter and Richard Loving were married in Washington,D.C., and went home to Virgina, where they were subsequently arrested one night, in their bed, having sex, which was illegal. Why? The Lovings were an interracial couple, and in 1958 Virgina, it was illegal for them to be married, and it was illegal for them to have sex. Crazy, huh?

Right now, that very same fictional California couple I mentioned is facing a similar fate. While they aren’t subject to arrest for being married or for having sex (thank God!) they are still not legally married in New Jersey or in any one of 42 other states. And in the eyes of the federal government, they are not married in any state. Crazy, huh?

The 14th Amendment, which is 141 years old today, was used in the landmark case of Loving v. Virginia to repeal anti-miscegenation laws, making interracial marriage legal. It should protect same-sex couples as well. Via Wikipedia:

The U.S. Supreme Court overturned the convictions in a unanimous decision, dismissing the Commonwealth of Virginia’s argument that a law forbidding both white and black persons from marrying persons of another race, and providing identical penalties to white and black violators, could not be construed as racially discriminatory. The court ruled that Virginia’s anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the 14th Amendment. In its decision, the court wrote:

‘Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival … To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The 14th Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

“The Supreme Court concluded that anti-miscegenation laws were racist and had been enacted to perpetuate white supremacy:

‘There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain white supremacy.'”

And there you have it. The Supreme Court of The United States, in 1959 made it clear:

“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival …”

The obvious question becomes, can race be viewed in the same manner as sexual orientation or identification?

The state of Massachussetts is taking this one step further. It is suing the federal government, saying the Defense of Marriage Act violates the Constitution and forces the states to discriminate against same-sex couples.

The attorney general of Massachussetts, in the complaint filed in U.S. District Court, said,

“Congress overstepped its authority, undermined states’ efforts to recognize marriages between same-sex couples, and codified an animus towards gay and lesbian people.”

In, “New DOMA Lawsuit is the Most Exciting Yet,” Emma Ruby-Sachs writes,

The genius of this complaint is that it takes a conservative argument — that liberal states should not be permitted to impose their tolerance and acceptance of homosexuality on the rest of the country — and turns it around to benefit a state that really pioneered gay rights in the U.S.

Even a conservative justice would support the notion that federal encroachment over those few areas where states have sovereign jurisdiction is unconstitutional. In this case, that principle supports, at the very least, limiting the application of DOMA when it affects state programs with federal funding.

If a conservative justice chooses to oppose the argument put forward by Massachusetts Attorney General Martha Coakley, then their logic could be used in the future to justify federal enforcement of equal rights on those states that oppose same-sex marriage. If state’s no longer have absolute jurisdiction over marriage, a liberal government can interfere with a conservative state’s policies.”

So, the Constitution, as we would hope, may already have embedded in its wisdom, equal rights for all people, including gay people who want to get married:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

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