Victory for LGBT, Failure for the Constitution

Let me preface this piece by saying that I don’t really care if gays are allowed to marry.  It doesn’t affect my life, it has no direct impact on me, therefore I don’t really care.  That is in keeping with my general philosophy on our society, that I don’t care what you do so long as it’s within the law and it doesn’t affect me.  If I were pushed for an answer I would have to say that I don’t see any real reason why gays should not be allowed to marry if that is what they wish to do.  Now to business.

We’ve all heard about the Supreme Court of the United States (SCOTUS) ruling over turning all bans on gay marriage nationwide.  As I said before I don’t really have any problem with that.  What I do have a problem with is the way in which they went about it.  The role of the SCOTUS is to measure laws passed through the political process against the Constitution of the United States to ensure that we remain compliant with our founding document.  What is not the role of the SCOTUS is to judge the merit of laws passed through the political process against their own, personal moral code and then decide whether or not a law is valid.  This is exactly what the Court has done here today.

The SCOTUS, as part of their ruling, has declared that people have “the fundamental right to marry”.  Lets start here.  By issuing this phrase the SCOTUS is declaring that marriage is a right to which we should all have access.  Our rights, our actual rights are outlined for us within the Constitution.  There is not one word of the Constitution, particularly the Bill of Rights, that mentions the institution of marriage.  The reason for this is that marriage is not a right, it’s a privilege.  So what is the difference between a right and a privilege?  Our rights are spelled out to us in the Bill of Rights, the first ten Amendments of the Constitution:  the right to peaceful assembly, the right to free speech, the right to keep and bare arms, the right to freedom from unlawful search and seizure, etc… Our rights are unconditional, save for one, that the exercise of our rights does not infringe upon the rights of others.  That is the only condition.  (You could argue that the 2nd Amendment is regulated but that has been declared an interest of public safety and even that is on shaky legal ground.)

Privileges on the other hand come with conditions, rules, and regulations that must be adhered to in order to partake of said privilege.  Driving a car on public roads is a privilege.  It has rules and regulations that must be met; permits, licenses, registration, fees, rules of the road, etc… The ownership of private property is a privilege.  Owning property, real or intellectual, comes with rules regarding what you can do with it such as zoning laws, environmental regulations, building codes, etc… Privileges are conditional, rights are not.  Marriage is a privilege.  It comes with rules and regulations attached to it; it requires a license issued by a government authority, there is a minimum age requirement, you can’t marry more than one person at a time, you can’t marry a family member, or an animal, or an object.  See the difference?

This SCOTUS ruling has changed the status of marriage from privilege to right, and they’ve done so by completely circumventing the political process.  By doing this they have essentially wiped out all restrictions, regulations and rules concerning marriage.  The Court says we all the have the “fundamental right to marry”, not the fundamental right to marry with a proper license, so long as we’re of proper age, and only to one person at a time who is not a family member, animal or object.  Just “the right to marry”.  It could be argued, in the extreme, that I could marry my Grandma, or my Aunt, or my Sister or my dog, or all of them at the same time if I so choose because I have the fundamental right to marry, period.

Some may say that the Court is inferring that marriage is a right or that it should have been a right.  That if the Founders knew what the institution of marriage would become they would have made it a Constitutionally protected right.  This is irrelevant.  The Supreme Court does not have the authority to make assumptions about things that could have or should have or would have been included but are not included.  Their job is not to speculate about things that are unwritten, but instead to interpret what is written and to measure existing laws against that which is written.

I spoke to a gentlemen who posited that maybe we should make marriage a protected right, or perhaps that this ruling does in fact make marriage a protected right.  If this should be the case then what stops us from turning other privileges into Constitutionally protected rights?  Can we arbitrarily declare that all citizens have the Constitutionally protected right to drink beer even though it’s not enumerated within the Constitution?  And where would the authority come from that would allow the courts to create such rights?  They have no such power.  Furthermore if we can create rights might we also be able to eliminate rights?  What if we created a new right and then someone came along a decade later and eliminated that right harming millions of people?  This is the reason that our rights are enumerated within the Constitution.  Anything not enumerated within the Constitution as being a right of the people is not a right of the people.

Next is the issue most people are talking about which is the application of the 14th Amendment, the Due Process clause, and the issue of equal treatment under the law.  I fail to see how a law banning someone from doing something represents a violation of the equal treatment clause.  We ban all sorts of people from all manner of activities all the time.  We prohibit 18 year-old, legal adults from drinking while 21 year-old adults are allowed.  Is that a breach of the equal treatment clause?  Should it really be considered a breach of the equal treatment clause to ban someone from engaging in an activity when we do it all the time?  What is the measure by which it’s lawful or unlawful to ban someone from an activity and where is this standard published?

The logic used to decide this case is not new, in fact the same logic was used to overturn bans on interracial marriage.  I think most all of us can agree that banning interracial marriage is immoral, but once again it is not the Court’s place to determine morality.  The Supreme Court exists to determine Constitutionality, not morality.  Of course this is not the first time the Supreme Court, or any other court, has ruled based on activism rather than the rule of law.  In any case, every instance of it happening represents a failure of our governing triumvirate.

If you want to go even further into it this case should not have even been heard by the SCOTUS.  The federal government does not have the authority to make laws governing the institution of marriage.  Article 1 Section 8 of the Constitution outlines the powers of Congress.  Nothing in there says anything about regulating marriage or other social constructs.  Article 1 Section 10 outlines the limits of State power, not one word of this section relates to marriage.  The 10th Amendment reads as follows:  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.  This means that anything not specifically reserved for the Congress by Section 8 or specifically denied to the States by Section 10 falls under the powers of the States and of the people.  In other words only the States and the public have the power to regulate marriage.  So a decision from the Supreme Court should be irrelevant since bans on gay marriage passed at the state level do not conflict with any part of the Constitution and fall completely within the realm of State power.  The Sixth Circuit Court of Appeals agreed with this notion when it ruled against this case prior to its hearing in the SCOTUS.  Sixth Circuit noted a lack of federal question and actually ruled that this should be settled through each States’ political process rather than in the court room.

While this issue is a huge moral victory for the gay community and for the larger American society, it is a massive failure for the political process and the rule of our beloved Constitution.  As has been said many times throughout our history, we are a nation of laws, not of men.  If we are to withstand the ages we must remain subject to our laws and not to the whims of men.

J.S. Franklin is a Constitutionalist and does not subscribe to any particular political party. He served nearly a decade in the United States Army and has degrees in Psychology and Criminal Justice with a focus on Homeland Security and Counter-terrorism.
  • esbee

    I agree with you wholeheartedly—but social engineering is the main agenda these days and everyone doing what is right in their own eyes. —btw, it is “bear arms” not “bare arms”

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