Welcome, dear reader...
to the first in a series of "regular" posts I hope to create entitled "Your Sunday Constitutional" in which I, by the guidance of the good people at Constitution Center, take an issue of recent debate or interest and see how it matches up against and in context of the Constitution. For this first installment, we will look at President Obama's recent support of homosexual marriage and what Constitutional actions could be taken place by both the Congress and the President to enforce such an opinion. The following is based on Lyle Dennison's article on the same topic. Must give credit where it is due...but I will add a few embellishments and opinion of my own.
To begin, let's look at the actual statement issued by President Obama this last Wednesday during an interview with ABC News:
“I think same-sex couples should be able to get married….I have to tell you that part of my hesitation on this has…been I didn’t want to nationalize the issue….I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.”
Now, we all know that there is no specifics in the Constitution regarding marriage of any kind, or the processes by which it is to be carried out. The federal government (specifically, Congress) is not given any enumerated power to affect the action of marriage from a Federal government level (look to Article 1 Sections 8 and 9 of the Constitution). Of course, whether or not it should have that power was already brought to bear in the Courts during the interracial marriage disputes that were brought before the Supreme Court and, ultimately, placed under the purview of the federal government in Loving v Virginia 388 U.S. 1 (1967).
Obama's last clause in his statement can lead us to believe that he does not wish to take any federal action regarding homosexual marriage and, therefore, not treat this issue on the same level as interracial marriage was. Now, given this context, that he wishes to leave such a decision up to the states and their legislatures, he has three options on the table that he could take-if he chose to do so:
First: The Constitutional Amendment - This seems the most obvious. Pass an amendment to the Constitution specifically addressing the institution of marriage and the illegality of the banning of such an act based on race, creed, or gender. Of course, the problem easily seen with this route is the passage and approval of such an amendment by the States. We merely need to look to recent state legislative action, most recently my North Carolina, to see that the people of certain states and their legislatures would vote to oppose such an amendment. Below is a map of states that allow some sort of version of homosexual marriage:
It is unclear on which side of the fence the "undecided" states would fall, thus it would provide a risky move for the Obama administration to try and push an amendment as the champions of homosexual marriage, only to have it fail on the national level.
Second: Use the Supreme Court - I will be the first to tell you that the Court has never and should never, ever base their opinions on ideological lines...because we all know that the Court is unbiased in all of its proceedings...because, simply, the justices are not human...yeah right. The Court is political and ideological on certain issues, do not be fooled. Therefore, Obama could find the ban on gay marriage in the majority of the States overturned by the Court ruling in favor of a case in which a petitioner claimed that their 14th Amendment rights were violated under the Equal Protections Clause. When asked if he would consider using the Justice Department to enforce homosexual marriage, Obama did not answer directly (like any good politician), but rather pointed to the Department's argument against the 1966 DOMA (Defense of Marriage Act), which defined marriage as between a man and a woman. He alluded to the same conclusion: that the DOMA violates the 14th Amendment. However, even if the highest Court in the land granted certiorari to hear such a case and declared such a violation to have taken place, the ruling would not necessary strike down specific state legislative acts that are given credibility under the 10th Amendment (such as California's Proposition 8). To that end, the Court could rule the a constitutional right had been violated, but that would not automatically circumvent the actions of the States due to the arguments in favor of the 10th Amendment. The Court would have to rule on the 10th Amendment viability of homosexual marriage in its ruling and, by doing so, would rob a lot of power from the legislatures of the States and set a very broad precedent, a decision, I think, they are not quite ready to issue yet, especially given the opinion due out in about a month concerning the viability of the Affordable Health Care Act...maybe you've heard of it...
Third: Get the Congress to Cooperate - The first time I considered authority with which Congress could pass legislation on this issue, I knew that it would be a minefield of legality. As I already stated, the Constitution offers no specific power enumerated to the Congress to pass such an act on this issue, nor does it specifically prohibit the passage of such an act (Article 1 Sections 8 and 9). The first idea that popped into my head concerning how Congress could go about this concerns with the Full Faith and Credit Clause in Article IV which states:
Full faith and credit shall be given in each State to the pubic 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.
Quite simply, the legal process of marriage and the "state" of marriage that certain states granted to homosexual couples can, through an act of Congress, be required to be honored in the States which do not provide such a process. Now, this does not necessarily grant homosexual marriages to get married in ALL the States in the Union, but it could prove to be a useful first step in the process and, at the same time, gives homosexual couples the freedom to move where they wish based upon job, income, etc. A second act of Congress, which Mr. Dennison brought to my attention, was for it to declare that marriage is a "privilege and immunity" or national citizenship and, therefore, cannot be violated by any state law. Based on the Supremacy Clause, both of these actions would take precedence before any state law, but, like the Supreme Court's opinion, encounter strong opposition from the 10th Amendment crowd.
To Conclude - The President has 3 routes he could chose to federally mandate the legality of same sex marriage. If anything, the ability of all three branches of our government to have the power to grant such an act is a very telling commentary about the viability and special nature of our national government. However, I think that ultimately, the President has the correct and most reasonable approach to this issue: he knows that to try and grant the right to marry to homosexual couples on a federal level would be very taxing, requiring both sides of the aisle in Congress to cooperate, stifling the arguments from the 10th Amendment right proponents, or hoping the Supreme Court issues a judgment in his favor without compromising the institution of the Court itself and its neutrality. The President knows that each of these scenarios is unlikely, especially given the current divisive nature of our politics. Therefore, the President merely voiced his opinion on the issue to strengthen his base in time for election season, while also hinting at the idea that he may be, in fact, a Federalist on this issue.
However, this last point could deal as much with expediency than it does with his ideology.
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