By Harold Pease, Ph. D
In state after state the Defense of Marriage Act defining marriage as between a man and a woman was passed. Likewise, in state after state, since passage, non-elected federal appellate judges have ruled same-sex marriage to be constitutional, reversing the will of the majority—until now. Finally a justice is actually using the whole Constitution in his arguments. Chief Justice Roy Moore of the Alabama Supreme Court recently wrote that the U.S. Constitution gives no jurisdiction whatsoever to any branch of the federal government to dictate marriage policy to the states and is advising Alabama Governor Robert Bentley to disallow county clerks from issuing marriage licenses to do so.
In a hand delivered letter to Governor Robert Bentley January 27, 2015, Justice Moore argued that “nothing in the United States Constitution grants the federal government the authority to redefine the institution of marriage” and that it decidedly trumps Alabama state law, more specifically the Sanctity of Marriage Amendment passed in 2006 by 81% of her voters. Moreover, “44 federal justices have imposed by judicial fiat same-sex marriages in 21 states of the Union, overturning the express will of the people in those states.” This he called judicial tyranny, which he defined as “unlawful opinions issued without constitutional authority.” He referred to the misuse of more recent interpretations of equal protection, due process, and full faith and credit concepts, as “specious pretexts” not part of the original document.
The press seldom consults the Constitution. Everything to them is simply liberal or conservative and Republican or Democrat. End of analysis!!! But is Moore constitutionally sound? What does the Constitution say about marriage and can Governor Bentley constitutionally refuse compliance with a judicial mandate?
When the Founding Fathers created the Constitution they recognized two co-existing governments known as Federalism: one, the federal government, to function primarily externally, the other, the states, to manage internal functions. Like a marriage they functioned—neither being master nor slave. Of the two only the federal government was restricted in its functions by a list of 17 specific powers found in Article I, Section 8. The Founders knew that all national governments like to grow. The states were left unrestricted and all power not identified was assumed left to them and lesser governments. To make doubly certain that this limitation on the federal government was permanent, the States insisted on having a Bill of Rights included in the Constitution as a condition of their acceptance of it. Amendment 10 of it reads, “The powers not delegated to the United States by the Constitution…are reserved to the states respectively, or to the people.”
Unfortunately for advocates of federalizing loving relationships the word marriage, or anything like unto it, is not in Section 8, nor has it been added to the Constitution by way of amendment through Article V, which is the process for change and thus this issue is devoid of federal constitutional authority. If we are to follow the Constitution as intended, and not make a mockery of it, marriage related questions are state functions at best and cannot be moved to a federal jurisdiction without a 3/4th affirmative vote of the states as per Article V of the U.S. Constitution. Alabama has every constitutional right not to issue marriage certificates to same-sex couples.
Still, what about Amendment 14, passed after the Civil War to make the southern states apply the Bill of Rights to their freed black population—the amendment now almost exclusively used to justify same sex marriages? This amendment was about slavery, not marriage; homosexuality at the time was illegal in every state. Two nebulous phrases in the wordy amendment, “due process” and “equal protection,” were extracted later by judges, sometimes with tortured logic, and used to rule that a state may not deprive their same-sex couples of due process and equal protection of the law. Each nebulous phrase took on a life of its own with no regard to original intent.
If a judge uses only the distortions of Amendment 14, not introduced into the Constitution until after 1865, seventy-eight years later and never understood by the amendment writers to justify radical change, he will use it to make same-sex marriage constitutional. To do so, however, he must intentionally ignore Article I, Section 8, and Amendment 10 and utterly discard the philosophy of federalism. Such judges endorse the movement to grow the federal government, righting all wrongs and solving all problems through an ever-enlarging central government—just the opposite of what the Constitution is supposed to do. Constitutionalist judges like Moore, on the other hand, value these essential components of the Constitution and will rule otherwise.
Judge Moore uses the complete Constitution as understood by its Founders. His opponents take one sentence out of the whole disregarding everything prior to 1865 and give it a meaning not understood at the time. So again, we finally have a judge who uses the whole Constitution in his interpretations.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution.