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Tenth Amendment

Marriage

This is not a discussion of the morality, validity, ethics or any other aspect of marriage.  It is strictly a discussion of the role of government in the personal lives of its citizens. 

 

The Constitution of the United States of America has this to say about the institution of marriage:               ”.  No, that is not a typographical error, hidden text or loss of connection or data.  The Constitution has nothing to say about marriage.  It gives the federal government no authority or responsibility concerning marriage – heterosexual, homosexual, polygamous, bestial or unions with extraterrestrials.  There is no Constitutional ‘right’ involving marriage in any form.  Access to any form of marriage is not a right like the right to free speech, religious practice, unlawful search and seizure, etc. protected by the Constitution.  Therefore, in the USA, it is the purview of the people and the States to define and regulate all aspects of ‘marriage’ since the federal Constitution neglects that area of law. 

Actually, the ‘institution’ of marriage is a religious and societal domain – not governmental.  It is religious and social taboos (and genetic practicality) that prevent siblings, cousins or parent and child from marrying.  It is religious and social mores and conventions that allow or prohibit polygamy, ‘child brides’, or homosexual unions.

 

There is no phrase or clause that allows the federal government of the USA to insert itself into the private consenting personal lives of the citizens of this country.  There are, however, in the first 10 Amendments of the American Constitution (the “Bill of Rights”) these:

Amendment 9:  The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

And Amendment 10:  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.

 

Beyond these statements as to the origin of power in the nation, nearly every State constitution makes a statement similar to this:  All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit.” (From the Texas State Constitution, but most others have similar statements.)

It seems clear to me that if the people of any State choose to allow only heterosexual monogamous marriages or instead allow heterosexual, homosexual, polygamous and poly-species unions the federal government has no say in the matter at all.  Indeed some States do define marriage. For example, the Utah State Constitution says, “Marriage consists only of the legal union between a man and a woman.” The Texas State Constitution says, “Marriage in this state shall consist only of the union of one man and one woman.” North Carolina’s Constitution says, “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.  Others concur, while Montana, New Hampshire, Pennsylvania and others make no mention of marriage in their constitution.  Others have amended their constitution (since until recent times this seems to have not been an issue) to allow same-sex marriage or union, if it was not already allowed.

 

Most of the recent State level actions to either allow or prohibit same-sex marriage have been plebiscites (direct votes of all eligible voters on important issues - such as a change in the constitution) on approving an amendment to a State’s constitution.  These referenda went through each State’s legal process to be put on a ballot to offer all registered voters of the State a chance to express an opinion on the issue.

I contend the results of any such referenda, whether rejected or approved, allowing homosexual marriage or a prohibition thereof, should ALL be upheld as completely valid and Constitutional – actually, such referenda are THE MOST valid legislative action since they are direct expression of the will of the general population.

 

Here are several points about holding an election on amending a State’s constitution:

1) Many people believe the USA is a democracy (which it is not – a discussion for another time).  This belief implies the will of the majority should prevail.  States that have a provision in their constitution for amending that document via a popular, ‘democratic’ ballot are indeed providing for an exercise of democracy (governance by the people). So, if democracy is a valid form of making rules, and if a vote is held and more than the required number of voting citizens agree that something should be law, then any question put before them that is approved shall (MUST) become law.

2) By definition, the State constitution, just like the federal Constitution, is the foundational basis of all laws for that State.  An amendment to that State constitution becomes part of that document and thus a component of the laws of that State.  Any Statement concerning the definition of marriage in a State constitution is by definition ‘constitutional’!  It is nothing but common sense that it CANNOT be ‘unconstitutional’ because it is PART of the constitution.

3) The purpose and function of an amendment to a constitution is to change the fundamental structure of the parent document.  If any court ‘overturns,’ ‘nullifies,’ or declares any such State constitutional amendment ‘unconstitutional,’ then how can ANY amendment ratified via plebiscite to ANY constitution ever be considered valid?

4) If the results of any such referendum carry no weight in determining the will of the citizens of a State, then why bother with ANY election, for no election can be considered valid, and no elected political office holder is legitimately chosen.  Even if 10 percent of a State’s registered voters participate in such a referendum and 50 percent of those votes cast plus 1 vote (or three-fourths or whatever legal requirement for ratification according to state law) vote ‘Yes’ then the amendment passes – even if it means only 5 percent of the populace ratified it.  You cannot argue validly that not enough people approved, because very seldom do enough citizens participate in ANY election such that 50 percent of ALL state citizens, including non-registered voters, express a preference on an issue or candidate.  I would conjecture that 99 percent (if not 100 percent!) of all elected officials in this country are illegally occupying their office if the requirement of 50 percent plus 1 of ALL CITIZENS is required to carry any election.

 

Article 4, Section 4 of the Constitution of the USA reads:  The United States shall guarantee to every State in this Union a Republican Form of Government.  If you remember from a previous article on this site, Merriam-Webster defines a republic as “a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law.”  The intent and common sense interpretation of this Constitutional section is to ensure the sovereignty of the States and prohibit the imposition of a tyranny upon them.  Therefore, the federal government, either legislatively, judicially or by executive decree, should thus be proscribed from usurping a State’s citizens’ wishes concerning what constitutes a marriage.  I would go so far as to say the federal government dictating marriage rules to any State is in fact a dictatorial tyranny.

 

All very interesting you will say, but Article 4, Section 2, Clause 1 reads, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.  So if one State allows homosexual marriage, they all must.  But some states allow the restriction of firearm possession while others do not.  Some states allow imprisonment of debtors (Yes! They do!) while others do not.  The various States have different laws concerning the drinking of alcohol, either by age or by time, etc.  Some States have legalized the use and possession of marijuana.   The federal government does not trouble itself with these issues.  Why is this issue different?  Because it can be used to divide Americans.  Because it can be used to demonize opponents.

 

As I state above, originally and practically marriage is a religious or societal contract between consenting people.  (Usually, though some societies have and do allow arranged unions for political, social or economic reasons.).  Crudely, the primary purpose of such a contract is to guarantee the support and nurture of offspring and establish a legal basis for distribution of assets and support should the marital union dissolve.  For centuries it was entirely the domain of religions to sanction and regulate marriage.  Now the primary reason governments get involved is basically for financial reasons:  married couples pay different tax rates than unmarried people; States make rules regarding responsibilities for liabilities, offspring support, spousal support after divorce and inheritance; in addition they may establish authority for medical direction in the case of incompetence; and other areas that involve ‘legal’ issues.

 

And lastly, bluntly:  the majority of the Supreme Court of the United States of America is totally absolutely wrong in their Obergefell v. Hodge decision.  Marriage is NOT a right and it is not an issue the federal government is authorized by the Constitution to regulate.  The Obergefell decision was purely a political one.  The majority opinion had no basis on a proper, common sense interpretation of the American Constitution!

In his majority opinion, Justice Anthony Kennedy suggests everyone is entitled to dignity as a right.  Okay, great, what is this ‘dignity’ to which Americans have a right?  Shouldn't she have the right to the dignity of walking down the street totally naked?  Shouldn't he have the right to the dignity of wearing a Confederate battle flag?  Does he have the right to the dignity of marrying twenty 6-year-old girls?  Does she have the right to the dignity of enslaving illegal aliens?  Do I have a right to the dignity of killing Sioux tribe members?  It seems to me Justice Kennedy either needs some remedial instruction on the American Constitution or he needs professional psychiatric help if he seriously believes this ‘dignity of expression’ is a Constitutional right.  Here is an excellent essay on this decision by law professor Jonathan Turley.

 

As ridiculous as it may be to prohibit consenting adults from living their lives in any manner they see fit as long as they adhere to the primary principle of non-interference in the lives and wellbeing of others, the citizens of a State, making their wishes known by ratifying a State constitution or properly amending it, have every Constitutional right to do so.  The plain truth is:  marriage is NOT an ‘unalienable right’ nor a protected right enumerated in the Constitution of the USA.  Those individuals wishing to bind themselves together in a manner other than heterosexual monogamous union may exercise their First Amendment right of free speech to try to convince their fellow State citizens to allow it.  Failing that, those homosexual, polygamous, or otherwise individuals may also exercise their freedom of movement by going to another State or country that DOES allow a desired union.  And even if a State does not recognize ‘same-sex marriage’ there is probably no prohibition from two individuals from making whatever private contract between themselves they may wish to craft.

I repeat:  Marriage is NOT a right protected by the American Constitution and it is not an issue the federal government is authorized by that document to regulate.

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