A case to overturn DOMA and California’s Prop 8

By Dave Palmer

The Supreme Court seems to be recanting on their decision to hear oral arguments in what portends to be a landmark decision in the field of marriage equality, taking on the Defense of Marriage Act (DOMA) which defines marriage as a union between a man and a woman for federal purposes, and California’s Proposition 8, which amends the California state constitution to state that “only marriage between a man and a woman is valid or recognized in California. The approval of the proposition overturned the California Supreme Court’s decision which provides that ruling of In re Marriage Cases that same-sex couples have a constitutional right to marry. The Court seems doubtful of their authority to hear the Prop 8 case, and may in fact dismiss it.

Hey, SCOTUS! This isn’t a time for cold feet. This is a time for cold resolution to use the Constitution as a governing document for our country rather than a showpiece in the Library of Congress.

The history of our constitution has been one of expanding rights after we realized that limiting right for certain groups of people does not serve the cause of democracy. In every case, there has been those who approve of the proposed change and those who oppose. This time around, it seems to be religious types who are hurling their morality arguments as a reason to prevent homosexual couples from getting married against those who believe that the morality of a single religion should not serve as the basis of bigoted behavior.

Moral arguments aside, there are several protections provided in our Constitution that should make overturning DOMA and Prop 8 a no-brainer for the Supreme Court. Those protections can be found in Article IV, Section 1, the Ninth Amendment, and the Fourteenth Amendment.

Article IV, Section 1: “Full faith and credit shall be given 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.”

This lovely section of the Constitution states simply that all states must honor laws, contracts (such as a marriage), and legal decisions made in other states. Otherwise, states would not be required either heterosexual or homosexual marriages, along with divorces, work agreements, birth certificates, death certificates, and virtually any other legal document, or proceeding that one might have to take with them when they move, and needs to be honored in any state within our union. It also gives Congress the power to force non-compliant states to get their act together.

Amendment IX: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Contained in the Bill of Rights, this amendment is often skipped on the way to the Tenth Amendment, which reserves powers not granted to the Federal Government, nor prohibited by it to the states and local governments. It is often cited whenever a state chooses to violate Article IV, Section 1 by passing a law that refuses to honor homosexual marriages from other states despite the fact that it does not supersede Article IV, Section 1 or the Fourteenth Amendment because those are powers reserved to the Federal Government.

Simply put, the Ninth Amendment provides that rights not listed in the Constitution are not the limitation of our rights. If society decides that homosexual couples deserve the same chance to get married as heterosexual couples, that would be a right that is retained by the people. In fact, several states have decided to allow homosexual couples to retain the right of marriage. I call on our Congress to nationalize that right.

Amendment XVI (Privileges and Immunities Clause): “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

This is perhaps the strongest argument in favor of allowing homosexual couples to marry. As of now, there are only a handful of states that grant the privilege of marriage to homosexuals and heterosexuals alike. Some states go as far as to make laws that not only prevent homosexuals from getting marriage, they also refuse to acknowledge a legal marriage between homosexuals granted in another state. That is undoubtedly a flagrant violation of the Fourteenth Amendment’s Privileges and Immunities Clause insomuch as they are making a law that refuses to grant the privilege of either getting married or being married to homosexual citizens of the United States.

There is simply no legal argument that can be used to argue against overturning DOMA and California’s Proposition 8. The only arguments surrounding this controversial issue come from a purely religious moral standpoint. If we are to uphold the First Amendment’s Establishment and Free Exercise Clause (Congress shall make no law respecting an establishment of a religion, or preventing the free exercise thereof) then we cannot allow any religious argument to have any sort of bearing on whether or not a specific group of people are allowed to have the same rights and privileges as everyone else. Homosexuals are freely exercising their beliefs in the same manner that heterosexuals are freely exercising theirs. No one has a set of rights that supersedes the rights of another citizen. Hopefully, the justices of the Supreme Court will realize this and use the Constitution to overturn DOMA and California’s Prop 8.