Should the US courts or voters rule the day on the same-sex marriage issue?

Voters

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by Harold Bozeman

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There is no reason that the federal government of the United States, through any of its branches, should have a hand in legislating the question of same sex marriage. Same sex marriage poses no threat to national security, the condition of the United States economy, or the enforcement of the laws of our nation and so it should not fall under the span of control of the United States government.

The federal government does not issue marriage licenses, state and county governments do, and therefore state and county governments alone should have the right to decide to whom the licenses will be issued. According to the 10th Amendment to the United States Constitution, "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." Simply put, State governments, or the people themselves, are solely responsible to answer the same-sex marriage question.

On September 21, 1996, then President Bill Clinton signed the Defense of Marriage Act (DOMA), which, plainly stated, exempted any state from the responsibility of recognizing marriage licenses issued to same-sex couples. The Act went on to define marriage as "only a legal union between one man and one woman as husband and wife, an the word 'spouse' refers only to a person of the opposite sex who is a husband or wife." The question, then, is this; where is the article in the Constitution that delegates to the United States Government the power to act as the moral compass for her people or to interfere in questions of love and matrimony?

The Defense of Marriage Act flies in the face of the Full Faith and Credit Clause of the Constitution (Article IV, Section 1) "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." The Clause gives Congress the privilege to prescribe the manner in which the several States must 'prove' or verify their Acts, Records and Proceedings, but it does not give the Congress the right to absolve the States from their responsibility to concurrent recognition of all other States.

As if overstepping the federal government's purview with the DOMA wasn't enough, there are politicians now advocating an amendment to the Constitution that would prohibit same-sex marriage on the federal level. In addition to the proposed federal definition of marriage, the amendment says "Neither this Constitution, nor the Constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman." So much for the States reserving the powers not directly granted to the federal government.

On February 24, 2004, President George W. Bush delivered a statement regarding the question of same-sex unions. In that statement he said, "On a matter of such importance, the voice of the people must be heard." Later he goes on to say, "America is a free society, which limits the role of government in the lives of our citizens. Our government should respect EVERY (emphasis mine) person, and protect the institution of marriage. There is no contradiction between these responsibilities." Really? During this statement the President also says "An amendment to the constitution is never to be undertaken lightly." So, at least that part of the speech is accurate and defensible.

Let us not forget that the last time the federal government tried its hand at social engineering through Constitutional amendment, the result was an unprecedented upsurge in crime and violence in our beloved nation. With the 18th Amendment came a period known as the "lawless years", so known because of Americans' widespread disregard for prohibition. It sparked an epidemic of violence as criminal factions sought to control bootlegging and "moonshine" operations and it placed a burden on federal law enforcement officials charged with upholding the statutes. The federal government's failure to legislate a purely social issue became clear on December 5, 1933 with the passage of the 21st Amendment, after which most of the violence and crime associated with prohibition ground to a halt.

It is obvious, given the complexity of the procedure and the overwhelming majority of legislators required for passage, that the Founding Fathers intended for the amendment process to be difficult. It is also clear that they did not intend to invest the federal government with the power to intrude on the everyday lives of Americans. On issues such as the Defense of Marriage Act and the proposed Federal Marriage Amendment, I agree with the President that "the voice of the people must be heard." The question of marriage must be left in the hands of State governments. If such laws are to be made or modified, this must be accomplished through a referendum of the people, not by having the will of the federal government thrust upon us.

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