SCOTUS'S IMPACT ON MARRIAGE #1-CIVIL

I noted in my blog on the Supreme Court Decisions that I will be condemned to purgatory by either the pros or cons if I wrote an opinion on the subject of same sex marriages.

The subject is multifaceted and includes interpretations of the term “marriage” as well ethical, philosophical, psychological determinations of “normalcy”, “heterosexuality”, “homosexuality” and “Bi-sexuality”.

Nonetheless before I comment on any of the above and prior to justifying my own opinions on the subject; I will state that I am not in disagreement with SCOTUS’s decision in the two cases.

Since the decision in the California case had nothing to do with same-sex marriage but rather with legal technical issues about which the 9 had various individual opinions we must accept the majority vote. What the court did was to decide that this case was not a matter for SCOTUS and in essence upheld the Trial Court’s      ruling against Prop.8.

The striking of the federal Defense of Marriage Act is another matter. At issue were the meaning of marriage, moral and religious issues and the philosophy of gender determination.

The two definitions of marriage as defined in Merriam-Webster with the key phrase in bold face are: “ the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law (2) : the state of being united to a person of the same sex in a relationship like that of a traditional marriage”  

The use of the word “traditional “ is relating to customary civil and religious practice. There are often marked differences in both domains in various political and geographical areas as well as in all religions and even their sub-groups. This there is not one worldwide definition of “marriage”.

An additional definition of “marriage in Wikipedia “Marriage can be recognized by a state, an organization, a religious authority, a tribal group, a local community or peers. It is often viewed as a contract. Civil marriage is the legal concept of marriage as a governmental institution irrespective of religious affiliation, in accordance with marriage laws of the jurisdiction”

Accepting the above; marriage as a legal and as a religious act is two separate entities, which may be combined one ceremony. There are several Amendments  that could justify the rejection of the Defense of Marriage Act’

The First Amendment’s first line: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;**”  could forbid the imposing by law of any Religious denomination’s belief upon the public.

However unless a religious belief or mention of biblical condemnation of same gender sex or relationship is present in the law there can be no association with religion. Without  that association the 1^st Amendment could not be instrumental  as a determinant of the Act’s Constitutionality stratus.

So; we turn to the 10^th Amendment; “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”  .

Nowhere’s in the Constitution is Marriage a prerogative of the federal government or are the individual states prohibited from determining the legal process in their domain. The Federal Government’s Defense of Marriage Act was in violating of the 10^th Amendment by making a criminal action that which was legal in many states.

This is why Justice Anthony M. Kennedy writing the majority opinion, stated: “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” Justice Kennedy wrote. “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.” 

All the above is why I must agree with the Court’s 5:4 votes declaring the Act to be unconstitutional.

What this action has done is to give to same gender married couples in the states that permit such marriage the same citizen’s legal rights as any other couple. The question still unanswered is if couples legally wedded in the 13 states that do at present permit such marriages will have their federal rights when residing in a state that does not recognized such marriages.  My bet is that it will take another suit to confirm that.

The “civil” issue of marriage having been settled; there remains the “religious”  issue. 
9:am: The civil issue is clear; legal marriage is subject to individual state law. According to the Constitution religious  convictions should not or must not impact on any such law. That is irrespective of the opinion of one person or even a  majority; a specific religion can not be imposed upon all the people.

The next blog will be devoted to the religious issues in marriage.