There seems to be a disagreement in the federal courts over which branch of government, state or federal, has the right to determine the definition of marriage. On the one hand a federal judge has ruled that the states have the right to define marriage, but on the other hand, a different federal judge has ruled that it is the federal government, through the U.S. Constitution, that has the right to define marriage. The battle to define marriage has entered a new phase and the question is, will same sex marriage become the law of the land or not?
U.S. District Judge Vaughn Walker overturned the California Constitutional amendment that banned same sex marriage in the State of California. According to the Judge, Proposition 8 violates the U.S. Equal Protection Clause of the 14th Amendment, as follows: “Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.” The Judge wrote in his ruling, “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples,” So, according to Judge Walker, state marriage laws are subjected to the U.S Constitution.
Is the Federal Judiciary speaking out of both sides of its mouth? Just back in July, Federal Judge Joseph L. Tauro struck down the 1996 Federal Defense of Marriage Act (DOMA) law. His reasoning in part was that the federal law encroached upon state law and that, he said, was unconstitutional. He stated that states had the right to set their own laws regarding marriage and that they had done so since before the American Revolution. “But even as the debate concerning interracial marriage waxed and waned throughout history, the federal government consistently yielded to marital status determinations established by the states,” Tauro wrote. “That says something. And this court is convinced that the federal government’s long history of acquiescence in this arena indicates that, indeed, the federal government traditionally regarded marital status determinations as the exclusive province of state government.”
So, which is it? Does, as Judge Walker ruled against Prop 8, the U.S. Constitution supersede state constitutions concerning marriage? Or, do states have the right to control the marriage laws, as Judge Tauro ruled? No one should be surprised by Judge Walker’s ruling against Prop 8. The only way that the pro same sex marriage lobby can advance their cause is through the courts. Thirty nine states have DOMA laws that define marriage as between one man and one woman. Thirty states have amended their state constitutions to reflect this definition of marriage. Many states took the action of revising their state constitutions to ensure that state legislatures or the courts could not force same sex marriage on the people of that state. As we have now seen with the overturning of Proposition 8 in California, by a federal judge, not even amending a state’s constitution is a safe way to protect the sanctity of marriage.
In October 2009, The Pew Forum on Religion and Public Life, reported that 53% of Americans are opposed to same sex marriage. Also, included in this national survey were results that showed that 49% of the public say that homosexual behavior is morally wrong as opposed to 9% that say that it is morally acceptable. The American people, by and large, are not inclined to redefine marriage. In the minds of the average American, marriage is between one man and one woman. Needless to say, this fight between states and the Federal Government over same sex marriage will end up before the U.S. Supreme Court.
Michael Levenson, Judge declares US gay marriage ban is unconstitutional, The Boston Globe
Associated Press, Federal Judge Overturns California’s Same-Sex Marriage Ban, FoxNews.com
National Conference of State Legislatures, Same Sex Marriage, Civil Unions and Domestic Partnerships, ncsl.org