President Bill Clinton signed the unconstitutional Defense of Marriage Act (DOMA) into law. President George W. Bush left it in place. President Barack Obama made a campaign promise to repeal it, but never did. Now, the Supreme Court has ruled that part of this law is unconstitutional. Their decision on DOMA is a victory for states’ rights. In reality, the Justices were partly correct in their 5-4 ruling: The entire Defense of Marriage Act – not just part of it – is unconstitutional, for one very simple reason; nowhere, in the Constitution of the United States of America, is the federal government endowed with the right to define marriage.
Since the federal government lacks the Constitutional authority to define marriage, that right is reserved to the states respectively, or to the people; as the 10th Amendment clearly requires.
It should be left up to each state to decide whether or not same-sex marriage is lawful in that state. With regard to interstate recognition of the legal rights of same-sex couples; that should also be a matter for states to decide among themselves. The assumption, here, is that every state that legalizes same-sex marriage would recognize the legal rights of same-sex couple visiting, or moving, from other states. This would all be in line with the Constitution. The Supreme Court’s decision on DOMA effectively removes the federal government from the issue and, therefore, represents a victory for state’s rights.
The only stumbling block to this whole idea is the intolerance of the activist gay community – the important distinction here is the implication that gay ‘activists’ are intolerant, as opposed to every gay person being intolerant. This intolerance was demonstrated when the people of California voted in favor of Proposition 8, which defined marriage as being between a man and a woman. LGBT activists immediately refused to accept this democratic decision and then, with staggering hypocrisy, promptly claimed that those who voted against same-sex marriage were intolerant. They then embarked upon a crusade to have the majority will discarded, in order for them to have things the way they wanted them to be. Instead of working through the legislature, or campaigning to change people’s minds – as would have been the right and proper thing for them to do – they tried to litigate the issue. The LGBT community can argue that they have a Constitutional right to marry, as the California Supreme Court has ruled, on more than one occasion. This is not correct; the Constitution does not, in fact, grant even opposite-sex couples the right to marry. Marriage is accepted, merely because it is a cultural custom that has been around considerably longer than the United States Constitution.
No one has the Constitutional right to get married. Whilst not granting the federal government the power to either legalize or criminalize same-sex marriage, the Constitution does not guarantee same-sex couples the right to marriage or to any legal recognition.
Each state should now decide the issue, either legislatively or by vote. Proponents of same-sex marriage, who find themselves living in a state which does not legalize it, will face a choice; work towards legalization or move to a state that recognizes same-sex marriage. Likewise; opponents of gay marriage living states that legalize it need to make the same choice. The 10th Amendment – the last, but, by no means, least of amendments in the Bill of Rights – has been systematically abused by successive administrations. The Supreme Court decision on DOMA is a rare victory for states’ rights and for the 10th Amendment.
Graham J Noble