BAYHAM: The Prop 8-DOMA Cases Are About More Than Just Gay Marriage

Facebook pages across the land came down with “equality measles” as supporters of legalized same sex marriage changed their profile pictures with a red equal sign logo the day the nation’s highest court heard arguments for and against California’s restriction that a marriage be limited to a union between a man and a woman.

The next day the court heard arguments over the constitutionality of the Defense of Marriage Act (DOMA). In addition to protecting the states’ freedom to decide whether they choose to recognize gay marriages, DOMA limits the federal definition of a marriage as being between a man and woman, impacting numerous areas, from tax filing to entitlements.

The court’s opinions, expected sometime in June, in the two cases could be limited or broad.

The court could very well rule that Section One of the Fourteen Amendment of the US Constitution, popularly known as the equal protection clause, applies to homosexuals who wish to enjoy the privilege of marrying their partner of the same gender, thus inventing a new “right.”

The clause reads “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Fourteenth Amendment was adopted after the conclusion of the Civil War in an effort to protect the rights of emancipated slaves who transitioned from a state of property to citizenship. Obviously the men who adopted the amendment did not envision the day when lawyers and politicians would use it to argue for same-sex marriage.

And though the Fourteenth Amendment at first glance seems very open-ended in its scope, it did not grant women the right to vote, which was accomplished over fifty years later with the adoption of the Nineteenth Amendment. As it required a constitutional amendment to expand citizenship for women in that instance, a reasonable interpretation of the Fourteenth Amendment would be that it does not extend to same-sex marriage.

However if the Supreme Court decides that the Fourteenth Amendment covers gay marriage, the question then becomes at what point does the cap get placed on “the universal liberty bottle”? Where else does the Fourteenth Amendment apply? Shall polygamists enjoy new freedoms as well, and if not, why are their rights denied while another group’s are expanded?

Or shall the court simply adopt a “because we said so” posture, taking it upon themselves to arbitrarily tailor America’s trendiest and most fashionable freedoms?

And then who decides what the new limits are? If the Supreme Court throws out California’s popularly adopted Proposition 8, then not the people, even in a matter where no declaration of right had been made until recent times.

If DOMA is tossed out, the “several States” and the Tenth Amendment will join the populace on the ash heap of judicial overreach, as the sovereignty of a state will be trumped by the actions of another, allowing for the tyranny of the one over the other forty-nine and providing the greatest argument against ever granting statehood to the extreme political outlier that is the District of Columbia.

If DOMA is shredded, Congress’ ability to set national policy will have once again been undermined by the judicial branch, as power is transfused from the voters and the 535 elected members of the national legislature to an unelected cadre of jurists.

Considered a “weather vane” vote on the court, the philosophically moderate Anthony Kennedy expressed concern during the hearing on Proposition 8 that California’s gay marriage ban was causing “legal injury” to children of same-sex couples who have an interest in seeing their parents’ union recognized by the state.

On a court where four justices were selected by Democratic presidents and five, including Kennedy, were appointed by Republican presidents, Kennedy will likely be the deciding justice in whatever direction the court rules.

As an indicator of how he is leaning and his mindset, Kennedy’s comments are not a good omen for supporters of traditional marriage and constitutional governance.
Will the Supreme Court allow themselves to become overly concerned with the “plight” of forty-thousand children attached to same-sex civil unions at the expense of the integrity of our federal republic and the concept of representative government?

There’s more on the line than just your cousin Frank’s wish to marry his boyfriend.

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