Transport the Founding Fathers to the 21st Century, have them live amongst us, absorbing our cultural habits and moral guideposts, and it’s likely that, like those of us living today, some of them would be okay with legalizing gay marriage and some wouldn’t. But would they approve of how its legalization was decided? Not on your life.
The Federalist system the Founders created gave all issues that affect the whole nation — national defense, foreign policy, coining a national currency, etc. — to the national government. However, all “objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the State” are “reserved to the several States.” (Federalist #45). So state governments are charged with day-to-day issues concerning the order, improvement and prosperity of their citizens — what we might call their safety, welfare, values and even morals. Marriage clearly falls into that category, meaning the states, not the legal branch of the national government, should decide the issue.
Further, the people in the states, not the state courts, should decide the issue. Marriage being a cultural-societal issue, that also means it’s a political issue, not a legal issue, so each state’s citizens should decide the issue through a ballot initiative, popular referendum, or even by who they elect to their state legislatures to vote either way on the issue. So in those states where the citizens vote against gay marriage, it should not be recognized. In those states that voted for it, it should be. Five unelected judges should not be overruling the people on cultural-societal issues, especially one as fundamental to our society as marriage.
And to those who say the 14th Amendment’s “equal protection clause” allows the national government to step in, at the time it was passed, neither blacks nor women had the right to vote, and the 14th Amendment didn’t change that. The 15th Amendment, passed in 1870, gave black men the vote, and the 19th Amendment, passed in 1920, gave women the vote. If the 14th Amendment didn’t give black men or women the right to something as fundamental as the vote, it’s doesn’t give them the right to marry same-sex partners.
Finally, there is the argument that gay marriage is no different than interracial marriage, which, based on the 14th Amendment, the Supreme Court made legal in Loving v. Virginia. But since the legal definition of a marriage at the time was simply between a man and a woman — with no mention of skin color — banning a marriage based on skin color discriminated against blacks, which violated the 14th Amendment. So the court’s ruling made sense. Gender is a different thing.
All of that aside, is there language in the Constitution requiring us to recognize same-sex marriage? If not, and there isn’t any such language, then the issue belongs to each of the 50 states, or, more precisely, to the citizens of those states.
