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Marriage and the Constitution

The opinions expressed by columnists are their own and do not necessarily represent the views of

In recent weeks, there has been a lot of talk in the media concerning the Defense of Marriage Act (DOMA). DOMA was passed in 1996 by large majorities in both houses of Congress and signed into law by President Bill Clinton. The reason DOMA became law was to protect states’ rights found in the 10th Amendment of the US Constitution. DOMA prevents any state that does not want a redefinition of traditional marriage -- an institution thousands of years old -- forced upon them. DOMA actually upholds each state’s right to self-determinism—or what is commonly called Federalism.


The information concerning DOMA’s purpose has been mostly suppressed by the mainstream media. Instead, DOMA has been characterized as an attack on the so-called “right to marriage.” Yet, the Constitution does not define a right to marriage, which is why marriage as a civil matter has always been a state issue. The only Constitutional role for the federal government to be involved in the marriage issue is to ensure the protection of liberty for religious people and the states.

Regardless of what we have been told, states’ rights are at the heart and soul of the DOMA law. No state should have to be forced to recognize a practice of another state against its will or the will of its citizens. That is why the Bill of Rights was written not long after the Constitution was ratified. The founding fathers knew that without a Bill of Rights to protect the nation’s people, the federal government would impose its will on the people quite easily.

Some on the political left have claimed that DOMA is an overreach of the federal government’s authority. It’s funny that these are some of the same people who claim that Obamacare and gun control are not an overreach of the federal government. What they are missing is the fact that a law or policy can only be an overreach of the federal government’s authority if it is outside of the framework of the Constitution. Obamacare and many policies thrust upon us by the Executive Orders of numerous presidents are certainly outside the framework of the Constitution. DOMA, on the other hand, is within the framework of the Constitution as Article IV, Section 1, of the U.S. Constitution, gives Congress the authority to regulate contracts between the states.


For as long as we have been a nation, marriage at the civil level has been a contract that is left to the states. It has always been a civil matter, or a civil union. However, a religious marriage is another thing altogether. According to the church, marriage is not simply a contract; it is a sacred covenant between a man, a woman, and God. Neither the federal nor the state governments have any business interfering with a sacred covenant protected by the First Amendment.

You would think this clarification between a civil union as defined by the states and a religious union as defined by the religious community would explain what is a federal right and what is a state right. Nonetheless, some liberal pundits and politicians reject the 10th Amendment argument supporting a state’s right to not accept same-sex marriages. They are claiming that to deny same-sex marriage at the state level is the same kind of discrimination as when some southern states denied interracial marriages. This policy of denying interracial marriages was struck down by the Supreme Court in 1967, as it should have been. Now, some are hoping that the Supreme Court will do the same thing with same-sex marriage -- forcing states to accept them.

Yet, comparing a state that denies same-sex marriage to a state that denies interracial marriage is a specious argument. It only sounds good on the surface. What makes the political left’s argument so flawed is the fact that the Constitution allows for equal access to rights and institutions at the federal and state levels for people of different ethnic and racial classes. We can thank the Republican Party for that fact, by the way. On the other hand, the Constitution does not allow for such access based on sexual orientation or sexual preferences. This is a huge distinction. The federal and state governments cannot deny a right that is clearly defined by the Constitution. Since same-sex marriage is not defined as a right within the Constitution, the issue is left to each individual state. It is just that simple.


What will happen if the Supreme Court overturns DOMA? The Obama administration will then be given the opportunity to force same-sex marriage upon the states that do not want them, much like they are now forcing Obamacare upon the states. In fact, if DOMA is overturned it will also make it easier for the Obama administration to force same-sex marriage upon the church and religious institutions, just like they are now doing with the Health and Human Services (HHS) mandate under Obamacare, which is a clear violation of the First Amendment.

For those who think this can never happen, remember that it is already happening. Obamacare and the HHS mandate are already in place. An Obama administration that is already forcing Obamacare upon the states will no doubt begin to force states to accept a new definition of marriage that they do not want. An Obama administration that is already forcing the HHS mandate upon religious institutions, in violation of their religious beliefs, will certainly force religious institutions to accommodate same-sex marriage in violation of their religious beliefs.

While some may scoff at the idea that a government entity will try to force its will upon people of religious faith, one does not have to look far to find examples of state sponsored intimidation targeting religious organizations and people of faith.

Take for example, Washington state, where voters enacted same-sex marriages in this past November’s election. A florist, Barronelle Stutzman, is now being sued by Washington state and threatened with fines and penalties for refusing to provide flowers for a same-sex wedding. This is a private business owner excising her right to be a conscientious objector, just like those who refused to serve in the Vietnam War. The collective power of the state is standing against her individual liberties.


How can people who disagree co-exist when one group uses the power of the federal or state governments to target those with whom they disagree? The proponents of same-sex marriage have some soul searching to do when it comes to this issue. They cannot claim to be the civil libertarians that they think themselves to be if they are using the government to malign people who hold to a definition of marriage that has been around for thousands of years.

As far as the woman who brought the DOMA case before the Supreme Court, Edith Windsor, she did so because she had to pay an inheritance tax -- or death tax -- when her same-sex partner died and passed along their property to her. This tax is truly unfair. The death tax actually required Windsor to pay more than $300,000 in taxes for receiving the property. However, this tax would still have to be paid if Windsor was receiving a home from her sister, mother or friend. Remedying the unfairness of the death tax would go a long way in fixing any unfair burden placed upon Windsor or anyone else.

Interesting enough, it has been conservative Republicans who have made many attempts to eliminate the unfair death tax. The Democrat Party has fought them tooth and nail, refusing to eliminate the death tax. In fact, the Democrat Party has consistently called for an increase in the death tax. The real blame for Edith Windsor’s hefty tax lies squarely with Obama and the Democrat Party, who refuse to eliminate the death tax, not Republicans who support DOMA in the name of states’ rights.


The Supreme Court must be very careful and narrow in their ruling on DOMA; otherwise, they will step on someone’s liberties either way. They can easily strike down the parts of DOMA that keep same-sex couples from obtaining federal benefits, while allowing the rest of DOMA to stay in place in order to protect states’ rights. As far as religious liberty is concerned, those who favor same-sex marriage will have to practice the same tolerance that they preach by applying that tolerance to the church and to people of religious faith, who have been practicing the traditional definition of marriage for thousands of years.

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