by Daniel Fishman

Created on: May 23, 2007   Last Updated: July 18, 2009

The 10th Amendment of the U.S. Constitution says:

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.

but the 14th Amendment says:

...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws...

There is no conundrum if we want to follow the Constitution. Marriage is a privilege, and therefore the states have no right to condone OR reject it. If a state wants to give legal status to people for having done something - they must afford that legal status to ALL CITIZENS. The writers of the US Constitution foresaw just this sort of conflict, and so they clearly defined who is a citizen and then just as clearly said that NO CITIZEN may be denied a privilege that is extended to another citizen. So government either needs to get OUT of the marriage business, or open it up to everyone.

We are dependent on all people being endowed with certain rights, and mentioned in the beginning of the Declaration of Independence. Those rights are available to all CITIZENS, regardless of where they go within the Union. It's not that long ago that issues of color were resolved very differently in different states. It required the intervention of the Federal government to assure equal rights for all, and if left to their own devices, many states would still have Jim Crow laws in place.

I personally would like to see states ONLY issue civil unions documents, and then religious orders (churches, temples and mosques) can issue marriage certificates. A civil union document would be the only legally binding union, and a marriage certificate would be as significant as the participants take their religion.

Marriage is fundamentally a religious concept, and does not need government interference. We have many Federal laws in place to prevent government interference with people and their religious practices. A Civil Union however is the legal means for connecting a family. Keeping the law and religion separate where possible is a good idea, and it has to be done at a Federal level. If we allow the states to determine what marriages is "correct" they could also argue that Islam is offensive.

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