My short answer is "no", but let me explain. Before answering what I think the situation should be, it is helpful to look at what the situation is. Currently family law is a matter left to a great extent to the states. States have the power to decide who may marry, the legal process required to do so, and what the legal consequences of that marriage are within the state. In all these matters states differ from each other. The state is limited in its actions, though, to the requirement of its own constitution as well as the constitution of the United States. What those constitutions require is often a matter of great debate, but the ultimate judge is the state's highest court for matters pertaining to its own constitution, and the Supreme Court of the US for matters in the US Constitution. In either case the constitution can be amended by a process laid out therein. So, for example, the US has ruled that a state may not forbid interracial marriages, or forbid inmates from marrying (except under compelling reasons). I am not aware of any argument claiming that the US Constitution currently forbids same-sex marriage, although there are arguments that it requires it either as matter of a fundamental right to marry, or as a matter of equal protection. It has been noted that the federal government has banned polygamy, but I don't believe this is quite true. The US Congress is ultimately responsible for the laws in DC and the territories. It thus banned polygamy in Utah when Utah was a territory. The Congress also the power to decide whether to admit a new state to the Union (both these powers are in Article IV, Sec. 3). Thus Congress refused to admit Utah to the union unless it's state constitution perpetually forbade polygamy. If Congres had thought it had the power to ban polygamy in the states, this would not have been necessary.
There is also the issue of section 1 from the above Article IV which guarantee Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. (Section 2 could also lead to some issues, but as it has been interpreted these issues seem minor). Here is briefly my understanding of how the SCOTUS has interpreted that clause, based primarily on my reading from Andrew Koppelman's book (see left sidebar) which devotes all of chapter 5 to this subject. Fulll Faith and ...
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...ough a process they decided upon. As I said, I'm not a big fan of the state as sovreign concept, but it's what we have right now. Unless we are going to abandon that concept, it is up to the state to deal with matters of how their own constitution should be interpreted. Other than prohibition (which many say in hindsight was a terrible idea) the only time we limit what a state can do within its own territory is when otherwise it would violate the right of an individual as a US citizen.
In summary, if I could write the constitution as I saw fit, states wouldn't have rights and marriage policy would be set by the federal government. If we are going to leave marriage policy to the states, as the constitution currently does, I see no reason to carve out an exception for same-sex marriage. States already have the requirement to provide equal protection in all of their laws including marriage, and I believe this would require same-sex marriage. I have no problem with somebody pushing for an amendment to the constitution if they see a change as necessary. I would hope the amendment would be narrowly tailored, though, to address the specific problem or problems it is designed to address.
As can be seen in various other Supreme Court rulings, both the United States Constitution and state constitutions affect civil liberties policymaking. As defined in Think: American Government, civil liberties are “the protection of the individual from the unrestricted power of government” (Tannahill 2012). In particular, the constitutional basis for civil liberties in America includes the First Amendment, which reads that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to assemble, and to petition the Government for a redress of grievances” (Tannahill 2012). In other words, the First Amendment prohibits the government from adopting laws that
One of the most common controversies addressed by the court is should the Bill of Rights apply to state governments. In 1833 in Barron v. Baltimore, the Supreme Court ruled that the Bill of Rights only applies to the national government and does not include protections against state governments. Barron sought redress under the just compensation clause of the Fifth Amendment. Justice John Marshall said the United States Constitution cannot be applied to state laws. This ruling was a major boost for states’ rights. (pg. A107-111) The Fourteenth Amendment was passed in 1868 states that anyone born or naturalized in the United States are considered citizens. With the passing of the Fourteenth Amendment, the Supreme Court begin to apply the Bill of Rights to the states. States were no longer allowed to pass laws that violated the civil liberties of United States as laid out in the Bill of Rights. (pg. 81)
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.
is a progression from the U.S. Supreme court to support states’ rights in large part due to
The U.S. constitution contains no expression of valued rights in considering privacy. Therefore, the Supreme Court has adopted a rather narrow interpretation of the Fourteenth Amendment specifically in regards to the term liberty, as established in the due process clause . Earlier Supreme Court decisions were not concerned with how states constituted their residents. Thus, any state, at this time, was at the liberty to deprive its residents of their first amendment, freedom of speech, religion, and press. However, this is much leniency and room for interpretation in the Due Process Clause, because it may be stretched to constitute not only at federal level but the state level. Reinterpretation under the 14th amendment bonded the first ten Bill of Rights within state governments to protect the citizens’ liberty. State governments are then prohibited from denying persons within their jurisdictions the Privileges and Immunities of a United State citizen, and guarantees that all natural born citizens have Due Process and Equal Protection of their rights, this binding, in turn, created the incorporation doctrine . Thus, the due process clause does not govern how a state sets the rules for specific disciplinary procedures. For example, in the Bill of Rights it specifies that if a citizen were accused of a crime, then that citizen would have the right to defense from a lawyer. But, suppose the state, or federal, government did not privilege that citizen to a lawyer. Then, that government would have violated this citizen the right to due process that is assured in the constitution.
As granted by the United States Constitution, everyone is entitled to equal rights. The Supreme Court of the United States recently ruled that the Constitution guarantees a right to same-sex marriage. Gay rights are forgotten many times and equal rights for same-sex marriage are often ignored. For this reason, federal authorities have left policymaking regarding this topic up to individual state governments. Many people throughout the United States, and across the world, have extremely different views on the subject; some because of religious reasons, others because of family, others because of how they were raised. The policy of gay marriage and equal rights is an extremely touchy subject, and is much deeper than what it may seem.
The issue of gay marriage needs little introduction as it is one of the most widely contended and discussed topics in the United States of America. While the issue is relatively recent one has to question why this is even an issue to begin with. The Supreme Court of the United States ruled that the Constitution guarantees a right to same-sex marriage. Arguments come from both religious groups, as well as secular focused sources. Reasoning against gay marriage ranges from religious immorality, to the idea that giving gays the right to marry would support minoritarianism (giving minority special privileges and advantages in either a legislative or societal capacity). There are countless arguments besides those mentioned, few of which have any substantial grounds to stand on. Gay marriage causes no political or communal grief, except for those who strongly oppose it now. Even for those people gay people exist either way. Whether they are married or not will not change that and their lives will not be dramatically changed from it. Gay marriage has no valid reason to be outlawed and there are plenty of reasons to allow it.
As a predominately conservative nation, it is ideal that we as a group do not redefine the term marriage under the Constitution of the United States. It is not a question of equality, simply because men and woman will never be equivalent—both parties have different complex qualities from their hormones, genitals, brain functioning, and to their overall genetic make-up. Homosexuality holds about 5% of the population, meaning that the majority would be forced to conform to the minority. It is imperative that we recognize the consequences of gay marriage which include: health risks, redefining sexual morality, reduction of the population, many being affected spiritually, and forcing the government to change laws to accommodate the minority.
...he the Due Process Clause and the Equal Protection Clause, banning same-sex marriage is completely unconstitutional and furthermore so is the Defense of Marriage Act. One of the greatest aspects of America is its promise to provide equality to all of its citizens and this is being compromised by the Defense of Marriage Act. In addition we must not forget that it is in each individual state’s rights to determine laws that are not previously stated in the constitution, and marriage is nowhere defined in it. When same-sex marriage is accepted in all states, America can move on with further upholding its standards of federalism and equality, and the promise of life, liberty and property to all citizens. Our country cannot be as prosperous and successful as we want it to be if we do not abide by the laws we set for ourselves - we are nothing if we are not constitutional.
Marriage should always be between man and women like I mentioned. However the united states supreme court has ruled that all fifty states issue marriage licenses to same sex coupe and marriages. Only the constitution of the states have the right to allow or disallow same sex marriage not the government.
Aside from the technicalities of the laws in which each state has set, same sex marriage has been in debate for many years. Not allowing same sex rights as heterosexuals have is absolutely a violation of the fourteenth amendment and probably a few more down the line definitely violate The Defense of Marriage Act. Furthermore it is a bigger violation on the moral side. Since it has taken this many years to enact some laws, the years prior were denied because of morality not legality.
The U.S. Constitution is the framework of our government that defines its powers and limitations, and it describes the relationship between the citizens of the country and the government at national, state and local levels. The U.S. Constitution defines what government can and cannot do, but it does not, however, regulate the behavior of private citizens. Therefore, only government can violate the individual constitutional rights. The principle that only the federal, state, or local governments can violate constitutional rights is called state action. State action also refers to the indirect state involvement when activity is a public function or when private conduct becomes significantly involved with conduct by the government. State action is the main requirement for determining
Yates states in Brutus 11, “Every extension of the power of the general legislature, as well as of the judicial powers, will increase the powers of the courts… This power in the judicial, will enable them to mould the government, into almost any shape they please.” The fear is that the Court will begin to stick its hand in legal problems of the state that do not concern them; however, even in present times, there is a strict procedure to how cases get to be heard before the Supreme Court. If a person wants to have their case debated at the level of the Supreme Court, they must first go through all of the state appellate processes and go through their state supreme court or court of last resort. Hamilton explains the importance of procedures with regards to the court system and the importance of the balance between state and federal court system, in Federalist 82, “for not to allow the State courts a right of jurisdiction in such cases, can hardly be considered as the abridgment of a pre-existing authority… that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union.” As Federalists, we understand that there must be rules to govern the court system. The fear that the Anti-Federalists have is without bases. The Supreme Court only takes cases that present a constitutional question or a conflict among federal governments, just like it is stated in the
On June 26, 2015, the US Supreme Court ruled that the US Constitution guarantees the right for same-sex couples to marry. Should gay marriages be legal? Clearly we as a nation are undecided on this issue. Thirty-six states have passed legislation banning gay marriages, yet a few states have passed laws that allows homosexual couples the right to participate in civil unions. Several other states are also debating whether or not to allow these couples to marry. Unfortunately, the dispute has left the United States' homosexual community in an awkward position. There are some people who think that gay people have no rights and should never be allowed to marry, and others believe that gay people should enjoy the same rights and privileges as heterosexuals. I think that the United States should allow same-sex couples to marry just like heterosexual couples.
Prohibiting same sex marriage is unconstitutional. "The act discriminates on the basis of the sex by making the ability to marry depend on one's gender" (American Civil Liberties Union, p 12). It also disregards the Faith Full and Credit Clause of the constitution. If a gay or lesbian couple gets married in a state where same sex marriage is legal, but then for some reasons decides to move to another state where same sex marriage is prohibited, it would mean that their union would not be recognized.