The Supreme Court’s decision to repeal a part of the Defense of Marriage Act, which was passed in 1996 by an overwhelming majority in Congress and signed into law by then-President Bill Clinton, should provide a wake-up call for all Americans. Moreover, by taking this action the appointed members of the Supreme Court effectively claimed their sovereignty over the elected legislative and executive branches of government.
This was not the intent of the Founding Fathers when our Constitution was created. However, even at its creation, the potential for judiciary overreach was a concern. Thomas Jefferson pointed this out clearly in one of his many letters: “At the establishment of our constitution the judiciary bodies were supposed to be harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions become law by precedent, sapping by little and little the foundations of the constitution and working its change by construction. In truth, man is not made to be trusted for life if secured against the liability to account.”
According to news reports, the arguments that the Supreme Court used to justify gay marriage is based in part on the equal protection clause of 14th Amendment to the Constitution. This amendment, which is referred to as the “Reconstruction Amendment,” was questionably ratified in 1868 after the Civil War for the express purpose of awarding the black slavery population the full rights of citizenship. Many constitutional lawyers say even today this amendment was never legally passed. Even with this controversy, there is still no reference in this amendment to the legalization of gay marriage. Moreover, there is nothing in the Constitution and its references to equality that gives legality to gay marriage.
Throughout the history of this country, the regulation of marriage has been a part of the legal laws of the state. This means that each state issues marriage licenses according to its own laws. The 10th Amendment to the Constitution clearly allows states this right. By the way, the 10th Amendment was approved as part of the Bill of Rights some 77 years before the 14th Amendment was ratified. So the marriage laws of the states were already in place well before the 14th Amendment was approved.
At the present time only 12 states allow gay marriage while 26 states oppose it. The split in state laws raises the question as to what action, if any, will the Supreme Court take to reconcile this conflict. Should they support gay marriage for all states, or should they treat it as a states right and do nothing? The question of gay marriage is more than a question of rights. It is a question of culture. Moreover, marriage between a man and a woman has been a part of civilized cultures for thousands of years. Only recently have a few countries, including the United States, chosen to allow homosexual marriage.
This tacit acceptance of gay marriage by some raises more questions about its legitimacy than it answers. Moreover, can a marriage between siblings be possible? Likewise, how about polygamy? Can a man have multiple husbands? Can a woman have multiple wives? Would there be equal protection under the law for all of these situations?
Clearly, America must come to some solution for this problem, and neither the president nor the Congress nor the Supreme Court has the authority under the Constitution to resolve it. The resolution of the gay marriage question resides with the states. As is the case today, each state implements its own marriage laws and the term “gay marriage” is limited to only those states willing to accept it. States that do not allow gay marriage may at their own discretion accept this relationship as a contractual agreement between consenting adults.
Despite the recent ruling by the Supreme Court, neither the states nor the federal government should apply the same tax benefits to gay couples as those applied to heterosexual married couples. However, if the federal government is so inclined to acknowledge gay relationships, then a special tax arrangement for these couples could be created for the strict purpose of accommodation. These federal tax benefits would be applicable to gay couples in all states.