Some Background Before Proceeding

I have found myself in a state of “paralysis by analysis” this week; with so many political and philosophical bombshells being dropped, I froze up, not knowing whether to tackle Part Three of what makes for successful representative governments, or to take on the issues involving the LGBT community first. I decided that what I needed to do was to explain the main constitutional issues concerning both topics first; that way, I can be relatively efficient when taking on those subjects.

First of all, it is vital to understand how the U.S. Constitution works, in general:

  • Its primary function is to limit power, not to grant power, although it does delineate specific powers to various government branches.
  • Subsequent amendments always supercede what came before them. I remember one mental midget, a state legislator, argue that a proposed constitutional amendment would be “unconstitutional”. Er, um, sir?…if you amend the constitution then your amendment is automatically constitutional.
  • The U.S. Constitution, in the opinion of most legal scholars, was and continues to be written with a certain degree of deliberate ambiguity so that it can adapt to an ever-changing world. This is done chiefly through direct court rulings and opinions and, if they are in place, by legal precedents based on those court rulings. It can get complicated, though; for legal precedent to be applied, the new case must be substantially the same as the previous one…but there is no hard and fast rule for determining where that line is to be drawn.

With this in mind, here are the portions of our U.S. Constitution that apply today. If any of them seem confusing, don’t feel too bad; you’re in the same boat with a lot of very bright legal scholars.

  1. Article One: This is known primarily for creating the Congress and specifying its powers, but it includes two areas of particular interest here. One is what it does not include; this will come into play later. The other is what textbooks call either the Elastic Clause or the Necessary and Proper Clause. This states that Congress has the power to pass any laws that are necessary and proper in order for it to be able to carry out the powers it was specifically granted. For instance, since Congress has the power to tax, it implicitly has the power to start a bank in which to store the monies that it has collected. Another real-life example is that Congress can prohibit hotels and motels from racially discriminating because it has already been given the power to regulate interstate commerce; obviously, an African-American driving across the country would be engaging in interstate commerce if he rented a motel room in Omaha. This clause is one that infuriates states’ rights supporters because they feel Congress is overstepping its bounds; however, the Constitution is very clear in its language and both of the cases I named are real-life cases, the challenges to which failed.
  2. Article Four: This is the article that defines the relationships among the states and between the national government and state governments. Its importance here is the Full Faith and Credit Clause which stipulates that states must, among other things, uphold civil contracts made in other states. For instance, if you get married in a state that still permits people to marry at age 14, and that married couple moves to a state where the minimum age is 18, the marriage is still legal and valid. You can probably see where this is going:  if a gay couple legally marries in New York, then moves to North Carolina (which just amended its constitution to prohibit gay marriages), must North Carolina provide full recognition to that marriage? (BTW, I have heard people call both G.W. Bush and Obama “cowards” because they are both on record as stating that gay marriage is a decision for the states to make. Wrong! Both men are following the U.S. Constitution, as you will see in a moment.)
  3. Article Six:  This is where things really start getting interesting. Article Six is a catch-all for the elements that did not neatly fit into one of the other articles. What is vital here is the Supremacy Clause, which reads that the U.S. Constitution is the supreme law of the land and that, when in conflict, national laws take priority over state laws. You are likely to hear the Supremacy Clause and/or Article Six mentioned by both supporters and opponents of LGBT rights, including those talking about amending the Constitution.
  4. Amendment Ten:  This stipulates that any power not granted to the national government nor specifically denied to any government belongs to the states. This is why both Bush and Obama are correct in saying that marriage decisions are a state concern, since marriage is not mentioned as a national power. However, especially on matters such as joint property, living wills, visitation rights, etc., I could see the national government applying the Necessary and Proper Clause. However, any broad-based legislation concerning marriage, passed by Congress, is an utter waste of time and serves as no more than a publicity stunt. The “Defense of Marriage Act” is and was a total joke and anyone associated with it should be ashamed.
  5. Amendment Fourteen:  This is probably where most of the disputes will come from; it is the amendment that guarantees that every U.S. citizen has equal rights and enjoys equal protection under the law. In the 1870’s, the Supreme Court intentionally misinterpreted it along North-South lines in the Slaughterhouse cases, saying that the 14th Amendment stipulated that people were both U.S. citizens and citizens of the individual states in which they lived; it took almost a century to overcome the stupidity that grew out of this decision (separate but equal, Jim Crow laws, etc.). So, where will the disputes arise?
  6. The first area is marriage itself. Is it a fundamental right? The Constitution does not list it as such, but various court precedents have included language that suggests that it is.
  7. The second area is the “nature vs. nurture” dispute. We have all heard plenty of people argue that sexual orientation is innate, not learned, but have also heard plenty of people argue that it is a conscious choice. Michelle Bachman’s husband owns a series of psychiatric clinics that include deprograming sexual orientation as a treatment one can choose. This matters because it is why one cannot refuse to hire someone on the basis of race (innate) but one can set minimum education standards for job applicants (choice of what degree a person wants to pursue). While scientific studies are not definitive, there is currently more evidence suggesting that sexual orientation is innate; furthermore, the tendency of the courts has been to uphold equal treatment unless there is a compelling state interest against it. What would be a compelling state interest to prevent people of the same gender from marrying? Just because I can’t think of one doesn’t mean that one cannot be argued.

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