U.S.A. -- This is (hopefully) the last thing you need to read about same-sex marriage

As hot-button topics go, the issue of same-sex marriage ought to be cooling off by now.  It's explicitly legal in most of the country--although the most conservative people and states still cling to the notion that it is and/or ought to be illegal--and public opinion clearly illustrates popular support by a majority of Americans.  Nonetheless (sigh), since we are less than a month away from a mid-term election which includes posturing for the Republican nomination for the 2016 presidential election, the politics of opposition to same-sex marriage are consuming a significant amount of the available oxygen.

Therefore, in the spirit that everybody is entitled to their own opinion, but nobody is entitled to misrepresent the law, here's a short question-and-answer overview of how same-sex marriage fits within the U.S. Constitution.  The questions are from the public discussion of this subject--and, in fact, have been in popular discussion for about twenty years--and the answers are based on my own reading of a well-thumbed copy of the Constitution and its Amendments.  As you probably know, the Constitution is a fairly short document, and its Amendments are few and typically concise, so it isn't a big job to do this.  But, in case you might be wondering about some of the constitutionally-related comments that are thrown around in hopes of winning a few votes, this might save you the time of reading the Constitution yourself if you are looking for what might be the basis for some of those comments.

And with that, on with the Questions and Answers:

Question 1.  Is marriage mentioned in the U.S. Constitution?
Answer 1.  Nope.  Nothing there about marriage.

Question 2.  If there's nothing about it in the Constitution, then what laws establish the legal act of getting married?
Answer 2.  State laws.

Question 3.  Is there something in the Constitution that supports/enables/authorizes the states to make these laws?
Answer 3.  Yes.  More specifically, Amendment 10--the last Amendment in the Bill of Rights--says "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."

Question 4.  So, then, since the Constitution says nothing about marriage, and it also devolves non-specified "powers" in general to the states, then each state can set up its own laws regarding marriage, and those laws can, among other thing, define marriage as only being legal when it involves a man and a woman, right?
Answer 4.  Well, no, that's not what the Amendment says.  The Amendment clarifies the Constitution and explicitly says that the states can make laws--which they were doing anyway at the time that the Constitution and the Bill of Rights were written and adopted--but it doesn't take anything away from the Constitution.

Question 5.  What's your point?
Answer 5.  Good question.  There are at least two other places in the Constitution--one in the main body, and another in a later Amendment--that would (and do) conflict with any law that would define marriage as between a man and a woman only.  The first place--admittedly, this is my own observation, since I have not yet seen it remarked upon in any reporting of the various legal aspects of same-sex marriage--is in the opening sentence of Section 2 of Article IV, in which is stated "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."  I'm not qualified to argue this in front of the Supreme Court, but if that statement is to be rendered into plain American Standard English for purposes of this discussion, it sounds suspiciously like it is saying that if a same-sex couple is legally wedded in, for example, the state of California, and they move to another state (maybe Texas?) then that second state is obligated to recognize the legal status of the incoming couple's same-sex marriage.  After all, that would be a "privilege" granted, by law, in another state.  There's probably more that could be made of this, but that's enough for now.

Question 6.  That seems kind of iffy; you got something else that's better?
Answer 6.  Yes, I mentioned an Amendment.  It's Amendment 14.  Section 1 of that Amendment reinforces the concept of "privileges and immunities" by saying that states may not make laws that abridge those things.  And then to be crystal clear, that Section concludes by saying that no state shall "deny to any person within its jurisdiction the equal protection of the laws."  It's not a very big leap of constitutional logic to conclude that any state law that defines marriage in such a way that it excludes same-sex marriage--or, perhaps, interracial marriage (yes, that's been done, too)--is unconstitutional because it would therefore be a law that is applied differently for different groups of people, and is therefore unequal in its protection.

Question 7.  That conclusion is just your opinion, isn't it?
Answer 7.  No, not "just" my opinion.  Several Federal appeals courts have said the same thing.  At this point, no such court has said anything that contradicts that conclusion.  For that matter, opponents of same-sex marriage--to my knowledge--don't seem to dispute the conclusion that such laws would be unequal.  If there is an argument by anybody that a law that explicitly defines marriage in the way that we are discussing it here would constitute "equal protection," then I've not read about it, and I read a lot of stuff.  As a result, any state law that says something that would rule out same-sex marriage in that state is on very thin constitutional ice.

Question 8.  Will the U.S. Supreme Court eventually issue a definitive ruling on same-sex marriage?
Answer 8.  Maybe.  They are almost certainly going to have to take a case on the issue when a Federal appellate court issues a ruling that conflicts with the appellate rulings that are already on record, and that could happen at any time (and, eventually, it will happen).  As for the ruling being "definitive". . .who knows?

Question 9.  Could the U.S. Constitution be amended to make a national definition of marriage?
Answer 9.  Yes.

Question 10.  Is it likely that the Constitution will be amended to define marriage as being between a man and a woman only?
Answer 10.  Anything is possible, but at this point the success of such a proposed amendment would be nothing more than a pipe dream.

Okay, you're right; that last one there is my own opinion.  But it made me feel good to write it, and I truly believe that most people in this country feel the same way.

And that's the way that the hot button cools.

Same sex marriage and the Supreme Court -- should there be a try for compromise?

Ordinarily, I like to think of myself as being one of the first to seek compromise.  Whether the situation is one of business or one of politics, both sides should be able to look at the outcome with some amount of victorious feelings.  However, the two recent cases regarding same-sex marriage that have been argued in front of the Supreme Court of the United States--casually referred to as SCOTUS--cause me to wonder if compromise is possible or even desirable for this issue.

Frankly, I can't think of any way to compromise on this.  Maybe somebody else can, but I have nothing to offer.

In the absence of any creative and agreeable compromise -- SCOTUS, do the right thing by saying that everybody is equal under the law, and then let's move on.

To save you the trouble of wondering and asking:  yes, I have friends who have a personal stake in this.  In speaking with some of them, I have gained an appreciation for what this means to them as individuals.  It's real, it's significant, and it's important.

Here's the result of such a SCOTUS decision:  first, a minority grouping of persons who are currently denied elements of happiness and equality of legal protection would be provided with the same opportunities for happiness, and the same equality under the law, as now is enjoyed by the majority; second, nobody is harmed (nothing is denied to anybody else); and, finally, we then clear the decks and use our considerable energies in resolving at least some of the many other issues in front of us.

If you want some icing on the cake, then here's a business-like reason for doing this:  such a decision will simplify things for businesses which would otherwise have to cope with conflicting state laws regarding same-sex marriage when their business is conducted across state lines.  Additionally, we will avoid potential pitfalls that might arise when attempting to do business with some organization based in another country that has already legalized same-sex marriage.  Business naturally drifts along the path of least resistance.  For most of us, these business aspects are not compelling, and certainly they do not occupy the same moral and ethical high ground as do the concepts of individual pursuit of happiness and equality of legal treatment, but they could be of value for some.

Anything that goes before SCOTUS is both political and legal.  If for no other reason, each case is political because each Supreme Court justice is a political appointee, and so each justice will view cases through the lens of his or her experiences, backgrounds and beliefs that caused the appointment.  Each case is legal, too, because judgment is expected to be rendered within the context of the U.S. Constitution, often called the "supreme law of the land," and therefore a judgment will have lasting legal impact.

Last week, SCOTUS heard arguments in two separate cases about same-sex marriage:  the Federal Defense of Marriage Act (DOMA), and California's Proposition 8.   DOMA, as it stands now, denies the legality of same-sex marriages within the context of Federal law, even when those marriages might already be legal under state law.  Proposition 8 amended the California state constitution to legally define marriage as only being possible between a man and a woman within the State of California.

More than one justice made comments indicating that they felt like tip-toeing around the political, social and legal complexities and implications of these cases.  Perhaps, so the musing went, this is "too soon" to consider and judge this issue.

If they really believe so, then shame on them.  Shame for not knowing history, shame for not paying attention to what is going on around them, and shame for wasting everybody's time.

Politically, SCOTUS has plenty of cover, as public opinion polls are consistently showing a majority of Americans are now in favor of legalizing same-sex marriage.  The U.S. Constitution, as well as prior SCOTUS decisions that have collectively driven a stake through acts of discrimination against minorities in this country, provides ample legal support for the decisive decision that I am advocating here.

If you doubt my grasp of the Constitution, and perhaps also my assertion regarding SCOTUS precedents, then simply consider a couple of things. 

First, the Fourteenth Amendment to the Constitution says, in part, "No state shall. . .deny to any person within its jurisdiction the equal protection of the laws."  That's a pretty clear, clean and pertinent statement.  If there's a good argument that would conclude such a statement to be supportive of discrimination in application of the law, I've not heard it.

Second, right up until a SCOTUS decision in 1967, states were making laws saying that interracial marriage was illegal.  That decision made clear the legal fact that state laws regarding marriage must bend to the will and the nature of the national Constitution.

Had it not been for that 1967 decision, my first marriage would have been illegal in several states.  Thankfully, the Supreme Court at that time had a firm grasp on Constitutional realities, and on the ultimate societal deterioration that is the consequence of discrimination against minorities.  I married inter-racially--with the comfort of knowing that there would be no legal shadow on the marriage's validity anywhere in the country--and millions of others have likewise done so.  I believe that each such marriage has made its own unique contributions to our society, and we are a better nation for it.

Today's Supreme Court should deliberate and decide with the same wisdom as did its predecessor of half a century ago.  America will not revert to discrimination against minorities by selectively applying the protections of its laws to some groups of people and not to others.  Affirming that principle was the right thing to do in the past, and it's the right thing to do now.

Marriage -- further thoughts from others

Articulate comments on the subject of same-sex marriage have been submitted by other readers and are viewable by going to the older posts--published on 22 and 23 February--and clicking on the "comments" link for each one.

"Tiger" is eloquently supportive in commenting on the 2/23/12 post.  But there's an econo-politico statement included in that comment with which I will have to take issue.  Here's the statement, lifted directly from the more extensive comment:  ". . .  I would like to live in a society where our main purpose and goal is to do all we can to ensure that every person can be the best person they can be. Yes, that means the talented and gifted do "more" and contribute more to those who are less abled. I realize that this sounds like socialism . . ."

Marriage -- continued

A couple of comments have been attached to yesterday's post on marriage.  You can read them by clicking on "comments" in the highlighted section at the end of the post.

The first one expresses disagreement, citing historical and cultural precedent.  That's a good point, since there seems no denying the reality of those things.  It occurs to me, though, that historical period during which the cultural behaviors were developed also coincided with general avoidance of the reality of gay and lesbian members of the population.  (Using the word "avoidance" here as a surrogate for a variety of other verbs that could also be used, most of them being harsher.)  Since this segment of the population had minimal recognition and acceptance, it was therefore also not able to participate in certain cultural norms.  Nonetheless, I have to admit that there's no changing history.