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Same-sex marriage should be left to the states

By Brian McCarty
On February 18, 2014

Last Thursday, the United States District Court for the Eastern District of Virginia declared Virginia's ban on same-sex marriage unconstitutional. The author of the opinion, Judge Arenda L. Wright Allen, wrote, "Our Constitution declares that 'all men' are created equal. Surely this means all of us." It is worth noting that the expression Judge Allen refers to is found in the Declaration of Independence, not the United States Constitution. Regardless, Judge Allen's interpretation of the Constitution in this case reflects an unfortunate misunderstanding of both our founding document and our system of government.
Judge Allen found Virginia's ban on same-sex marriage to be a violation of the Fourteenth Amendment, a vessel the federal judiciary has too commonly used to invade the reserved rights of the states. In fact, the Fourteenth Amendment itself is of questionable validity due to the circumstances of its ratification. In order to obtain the required three-quarter majority of states necessary for ratification, the federal government made ratification of the amendment a requirement for the Southern states to regain representation in Congress subsequent to their defeat in the Civil War. This, compounded with the unprecedented degree of control the federal government had over Southern state legislatures at the time, resulted in a forced ratification. As the principle of consent is at the heart of ratification, "forced ratification" is a farcical oxymoron inconsistent with our federal system. However, presuming the Fourteenth Amendment was properly enacted, it still does not lead to Judge Allen's conclusions.
Judge Allen determined Virginia's ban to be in violation of the due process and equal protection clauses of the Fourteenth Amendment. The clauses together read, "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." The due process clause, adapted from the Fifth Amendment was intended to insure that all people, including the newly freed slaves, would have the right to "due process of law", or fair legal proceedings, whenever the government attempted to take away the fundamental rights of life, liberty, and property. The guarantee of this clause is due process of law, not liberty. However, in recent decades many have found substantive rights in this clause, specific liberties so fundamental that, even with due process of law, cannot be taken away. Judge Allen believes the right of same-sex couples to marry to be one of these liberties. The drafters of this clause never intended for the federal judiciary to determine what sacred and fundamental liberties states cannot deny. They only sought to guarantee a legal process to all when certain rights were threatened.
However, "due process of law" was not enough for the drafters of the Fourteenth Amendment because the legal process was applied unequally to different persons. For example, in many Southern states, blacks could not present evidence or be witnesses, and often received harsher punishments than whites for similar crimes. The equal protection clause was meant to ensure that every person would be treated equally in the legal process. Judge Allen maintains that denying same-sex couples the right to marry violates their right to equal protection of the laws. The clause was not meant to create new substantive rights, but to make sure that the legal proceedings previously guaranteed in the due process clause were applied equally to all.
Decisions such as the one issued by Judge Allen are dangerous because they severely undermine the principles of federalism and ratification. When a state ratifies the Constitution or a subsequent amendment, they are consenting to delegate some of their sovereign rights to a common agent, the federal government. Any rights not delegated by ratification are retained by the states. No person could honestly claim that the states that ratified the Fourteenth Amendment intended to surrender their right to legislate on same-sex marriage. Therefore, since three-fourths of the states have never surrendered this power, by necessity, they still retain it. Evolving social conditions do not empower the federal judiciary to claim powers not delegated to it and contravene the wishes of a state as expressed by its legislature. As similar decisions have recently been issued by federal judges in Utah and Oklahoma, it is almost certain the Supreme Court will have to issue a ruling in the near future. Hopefully, it will affirm the constitutional principle that unless three-fourths of the states say otherwise, this issue is to be decided by the people of the several states. 

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