Why Is SCOTUS Even Considering Same-Sex Marriage?
The Constitution has nothing to say about marriage, "gay" or otherwise.
Since the very definition of marriage is up for grabs at the U.S. Supreme Court this week — SCOTUS entertained oral arguments Tuesday on a number of cases consolidated under the central issue of the un-constitutionality of states’ ability to deny gay marriage — we thought this an appropriate point to interject reason into the debate, strengthened by an understanding of history — Constitutional history. Let’s start with the basics: The Constitution of the United States has nothing to say about marriage, “gay” or otherwise. What does that mean?
Well, if you know nothing about civics, it means nothing. Unfortunately, that’s the take the religiously zealous supporters of same-sex marriage are trying to foist off on the Supremes this week. Their approach, of course, doesn’t admit to this, or even begin to touch on the truly core issue — Federalism — for the same reason abortionist supporters of Roe v. Wade did not: They would otherwise lose. Let’s walk through this Matrix together, Neo.
The Constitution is the foundational legal document governing our nation. For almost 200 years it served as the backbone behind the body of laws under which the lowliest individual to the U.S. President operated. All of that changed with the Progressive Movement of the late 1800s and early 1900s, FDR’s New Deal and a host of other progressive assaults on the concept of the Rule of Law. Wiser-than-the-rest-of-us progressives rejected this idea in favor of the arrogation that some people (read: them) are better suited to rule than others (read: you), and accordingly pushed to make the Constitution a “living, breathing document” (read: changeable to suit progressives’ needs). The practical upshot of this “breathing” is that Rule of Law is all but a dead letter in our nation. But we digress.
Since the progressives’ constitutional onslaught, the model formerly known as “federalism” has died yet another — virtual, if not actual — death. The Constitution originally gave power to the federal government to make and enforce certain, very particular laws across the land. These so-called “enumerated” powers were so called because they were very limited in scope, though unlimited within the span of that scope. Such laws were applicable to the entirety of the United States and evolved from the previous federal power failures of the former bedrock document, the Articles of Confederation. For example, the power to regulate commerce among the states — a power itself abused over the past century by an overly-ambitious SCOTUS interpretation of the term “interstate commerce” — is specifically granted to Congress under Article I of the Constitution. Likewise, the power to enter treaties — another power very recently abused, since the current office holder ignores the prerequisite Senate consent to such power (“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties… ”) — is specifically granted to the president under Article II.
However, the rest of governmental power is vested within the states. This structural component was codified under the Tenth Amendment, which reads, “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.”
In a nutshell, the Tenth Amendment is saying if We-the-People didn’t give you-the-federal-government a particular power in the Constitution, we are keeping that plenary power for individual states to make those calls. The rationale behind this principle, as aptly annunciated in the opinion section of Tuesday’s Wall Street Journal, is that the “Founders believed that social mores should be reflected in law through the democratic process, not judicial command.” Indeed.
Unfortunately, over a century of assaults on the Tenth Amendment have withered it to a bare thread of what it once was. Were this not the case, the issue before SCOTUS wouldn’t even be here. It would be among each of the 50 states to decide for themselves. Sadly, that option was foreclosed with SCOTUS’s unreasonable shoot-down of the Defense of Marriage Act (DOMA), whose primary focus was the assertion of individual states’ rights to choose for themselves whether or not to recognize same-sex marriage. Ultimately, that means the decision of whether to recognize same-sex marriages rests not with individual states, but rather with an arbitrary and often-fickle Supreme Court.
The real issue is whether a state’s free people can decide for themselves whether they can choose one such path or another. The more the Tenth Amendment is eviscerated by the Court, the less likely they can. The Founders envisioned the states as political laboratories to experiment with governmental models. Those that worked encouraged people to move and join in the prosperity of successful models; those that didn’t encouraged people to vote with their feet. Let’s hope the Supreme Court learns its lesson from Roe v. Wade and decides the Founders’ model is best. If history is any guide, however, we’re not overly optimistic.