HOMOSEXUAL (SAME-SEX) MARRIAGES: An Interpretation of the American Constitution

by Mark Daniels

The issue of same-sex marriage has swamped our airwaves for the past several months and has taken center-stage in California.  There are many ways to look at this issue: personally, religiously, politically, emotionally, rationally, legally, even Constitutionally.

As a person directly affected by the outcome of this national social debate, I have looked at it from all these angles.  In so doing, I have found nothing at all which persuades me that there exists a rational reason to deny fully equal marital rights for same-sex couples.  

For sake of rational clarity, and for sake of driving home the most acceptable, even conservative reasons for my stand, the Federal Constitution shall serve as the backdrop for my discussion.

Mind you, I am not a Constitutional scholar, nor a lawyer.  I am a common, average American citizen who treasures the deep values of justice and equality our Constitution embodies and veterans across the ages have fought and died to preserve.  It is with that in mind that I present the following argument:

Our forefathers could never have dreamed this day would come, that gay men and women in America would fight for the right to marry just as heterosexuals marry.   The fact remains that the Constitution was written to "...secure the Blessings of Liberty to ourselves and our Posterity." (Preamble)

Since the legality of same-sex marriage has come under scrutiny, it is good to examine seemingly new philosophies and perspectives; how else can we determine the rightness of something?  But what hasn’t been considered is the legality of denying same-sex marriage.
Article Four of the Federal Constitution states:

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
Clause 1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

Because the Constitution does not explicitly give the Federal Government jurisdiction over marriage, the right to regulate marriage is, by default, given solely to the States to decide.  Therefore, Congress had neither right nor power to pass the Defense of Marriage Act (DOMA) in the first place.


The solution, some may argue, is to amend the Federal Constitution, which is what George W. Bush endorsed.  There is one problem with that:  Article Six reads:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

Boiled down, this means that the Constitution is barred from contradicting itself.  Thus, a Federal Marriage Amendment that would deprive a singled-out populace of any rights runs in clear contradiction to Article Four and Amendment Nine of the Constitution.  Amendment Nine states:

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

The Constitution says in Amendment Fourteen:

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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."

What this basically means is that the States do not have a right to pick and choose the people to whom it will grant rights and privileges.  If one group of people is allowed to marry, all groups are allowed to marry.  If same-sex couples are barred from marriage, it is an abridgement of the privileges they are entitled to as citizens of the United States; it would be a deprivation of liberty and prosperity, and would strip same-sex couples of equal protection of the laws.  Plainly, it is discriminatory, and the Fourteenth Article clearly states that selective granting of privileges is not allowed in the United States.


Some may say, "Gays have the right to marry just as everyone else—a right to marry someone of the opposite gender."  Similar arguments were made in the days of miscegenation in the 1950’s and 1960’s:  "Blacks have the right to marry just as whites do—the right to marry someone of their own race."  Such a stance is clearly a form of hypocrisy and oppression, and has no place in the America our forebears envisioned, and contradicts the very basis of the repeal of the miscegenation laws.  Albeit slowly, Americans have striven over the years since Brown vs. the Board of Education to uphold that ruling socially; separate but equal is not equal.  In our societal efforts to make this ruling a social and legal reality, we have made tremendous strides to end all forms of discrimination, finally recognizing our fellow man and woman’s rights as unalienable regardless of creed, religion, race, gender, and even sexual orientation.


" Equal rights are not special rights unless you're the one who doesn't have them."