Quick Note: I've been typing these posts late at night and often not submitting them the day after they should be posted. I will now start writing these posts the night before and posting in the morning before school so that you readers have an article to read right after you wake up. Thanks for your patience. Now to the article.
In my original post against the oppression of homosexuality, Homosexuality and the Supreme Court, I said that there is no logical, constitutional argument against homosexual marriage. In my readings and studies concerning the issue of homosexual oppression, I have finally discovered a reasonable argument against it. After explaining this argument I will refute it using the Constitution, since it is a constitutional issue.
The constitutional argument against homosexual marriage is based off the Tenth Amendment, which states, "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." In essence, this amendment dictates that any power not given to the national government, or denied to the states, is a power of the states. The aforementioned argument then claims that since marriage is not defined anywhere in the Constitution, nor does the Constitution ever give Congress the power to define marriage, nor does the Constitution deny the states the power to define marriage, that the definition of marriage is a power of the states. The power of states to define marriage, and the Defense of Marriage Act, is a direct violation of the Fifth and Fourteenth Amendments.
The Fourteenth Amendment states, "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." States defining marriage as between a man and woman denies gays and lesbians the right to marry and, as such, violates every clause of this amendment. I shall address each clause one at a time:
Immunities and Privileges:
First, and most obviously, homosexuals are citizens of the United States. Therefore, they are garunteed certain immunities and privileges; among these, people have the privilege (anything involving a license or certificate is a privelege, i.e. driver's license, birth certificate, etc.) to marry. Any law against homosexual marriage denies, or abridges, this privilege. Now let's assume homosexual marriage is deemed not to be a privilege by society, heterosexuals still have this privilege, which will be relevent later. It will also be relevent that married couples are granted a tax reduction, also known as an immunity from a tax.
Due Process of Law
If you murder someone, your rights aren't taken away until after a trial. If you lose your license, its not until after a trial. If you steal something, you aren't made to give it back until after a trial. If you drive drunk, you're not jailed until after a trial. In short, if you break the law, your life, liberty, or property are not denied until after a trial. Homosexual marriage is banned in 37 states, 31 by State Constitutions and the other six by law. Homosexuals lose their liberty to marry before due process of law.
This is the clause that truly strikes against state definitions of marriage denying gays and lesbians marriage. The Equal Protection law declares that all people must be equally protected by laws: blacks and whites (during the Civil Rights Movement), men and women (especially wages), etc. Married couples have employment and tax benefits and immunities that non-married individuals do not have. These tax exemptions and employment benefits are to help pay for houses, cars, and many other items that typically start with married life. Homosexual couples are denied the benefits and exemptions (immunities and privileges) of marriage, therefore the law is not equally protecting everyone. The Equal Protection clause is the statement that truly grants gays and lesbians the right of marriage, enforcing the prior two clauses as directly pertaining to homosexuals.
We've now determined that state definitions of marriage are unconstitutional, but the Fourteenth Amendment only applies to states, what about the national government? Why is the Defense Of Marriage Act unconstitutional. These answers lie in the Fifth Amendment which reads, "No person shall...be deprived of life, liberty, or property, without due process of law..." The Fourteenth Amendment, once again, states that United States citizens have garunteed privileges and immunities. These two clauses holds the national government to the same obligations as the states. Congress cannot make laws that will abridge the privileges and immunities of the citizens of the United States, nor can the national government infringe on their liberties without due process of law.
The Tenth Amendment gives states powers not denied to them or given to the national government, as stated by the Constitution. The Constitution, via the Fifth and Fourteenth Amendments, gatuntee citizens of the United States certain privileges and immunities that must be equally applied to all people and cannot be violated without due process of law, by either the state or national governments. Married couples are given privileges and immunities denied to homosexual couples, since they cannot marry in 37 states. The Fourteenth Amendment, through the Equal Protection clause, extends the rights of marriage, and its resulting privileges and immunities, to homosexuals via the law. The Fifth Amendment and Fourteenth Amendment defends these rights from both the national and state governments, respectively. Due process of law must be taken to deny any homosexual couple the liberty of marriage, but since the Constitution implicitly legalized gay and lesbian marriages, and liberties can only be denied from a crime, the state and national governments can deny the liberty of marriage to any homosexual couple. Since the Constitution denies states the power to abnegate United State citizens privileges and immunities, including those regarding marriage, the Tenth Amendment does not permit states to define marriage.