The United States Constitution embodies all the hope and complexities of 18th century thinking. Somehow modern concepts of equality, due process, and freedom of expression were put next to clauses upholding the brutality of slavery and subjugation of women. Our Constitution was not perfect, yet it paved the way for the modern society we live in. What does every person say when we are threatened by authority: “Where’s your warrant?”, “I don’t want to talk to you without my lawyer”, and perhaps the most important “I have a right to speak”. These concepts are part of the foundation of every citizen’s thinking. We take them for granted, but travel outside of the United States and you will see very different schemas at work.
The Constitution has more than a few shortcomings, however it does implement two underlying principles. First, a restriction of government power by separation of responsibilities and authority to govern. Second, it allows for gradual change and growth of our legal systems and government. It is easy to take one of these principles and conveniently forget the other.
Marriage, for example, is not regulated or defined in the United States Constitution. Therefore, it would seem that the Tenth Amendment guides us on the issue of life long partnership vows and their benefits. The Tenth Amendment 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.
Given the Tenth Amendment’s clear language, conservative views of marriage would seem to prevail under individual state constitutions. And so the victory would go to L.G.B.T. oppressors such as Chief Justice Moore of the Alabama Supreme Court who said in a letter to Alabama’s Governor “As you know, nothing in the United States Constitution grants the federal government the authority to redefine the institution of marriage.” Is the Chief Justice of our Union’s most conservative state court correct? Short answer, absolutely not. This is because of the second Constitutional principle, today’s document is not the same as the one from 1789.
Given the Tenth Amendment, how can the United States Supreme Court hold same sex marriage legal in all states? The Federal Constitution doesn’t say anything about marriage, but it does have the Equal Protection Clauses in the Fifth and Fourteenth Amendments. The Constitution also created Article Three Courts. In 1803, the U.S. Supreme Court made a bold declaration:
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. (emphasis added).
Marbury v. Madison, 5 U.S. 137, 177-178 (1803). Unfortunately for Alabama’s Chief Justice Moore, the separation of church and state and judicial oversight were decided well over two hundred years ago. The United States Supreme Court has since had to expound and interpret the Equal Protection and Due Process Clauses in order to protect the citizen’s freedoms from a misguided majority (and occasional minority). Most famously in 1967, Chief Justice Warren of The United States Supreme Court held:
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. (emphasis added).
Loving v. Virginia, 388 U.S. 1 (1967). Alabama’s Chief Justice wants to reboot the Federal Constitution and Marbury v. Madison and erase 212 years of history and precedent. With only obligatory respect, I must strongly disagree, too many of our countrymen and women have suffered and died to get us here. Healthy debate is always welcome, especially within the legal profession. Refusing to uphold a Federal Court’s decision that protects a group of people’s fundamental rights, rights that are considered essential to existing in a free society is not healthy debate or political opposition. Such acts go beyond disgrace because they fuel institutions of ignorance and bigotry within the government itself.