The Constitution and Marriage

The US Constitution says nothing about marriage. Nothing at all. It is totally silent. Since it is silent, the Federal Government has no authority over marriage. Period. Why? Because the US Constitution is a document that delegates powers from the States and the People to a National government. Contrary to what many might believe (including, sadly, many current and past Justices of the Supreme Court), any power not delegated to the national government is retained by the states, or by the people. The Constitution says so:

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. [Amendment X]

The Founders and the several states added this amendment to make it absolutely crystal clear that the national government may only exercise those limited delegated powers and no more. Over the years the courts have effectively eliminated the Tenth Amendment from their jurisprudence, insisting that the “commerce clause”, “necessary and proper” clause and various other clauses control the cases, not the clear and explicit statement in the Tenth Amendment.

What does this mean? It means that the Federal government has absolutely no say in who may marry whom. It must rely on the judgment of the several states, through their elected officials, to determine what the criteria for marriage are. And it must accept the administrative acts that declare individuals married. Any benefits offered to ‘married’ persons must be offered based on the sole judgment of the state that issued the marriage certificate. Period. End of discussion.

As for the individual states, it is their constitution, legislature, courts and people who decide the criteria for marriage. They are the sole judge of who qualifies to be married and under what conditions. There is one major caveat-the constitution requires them to recognize all marriages performed by other states as well:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. [Article IV, Section 1]

This is seen in the fact that you don’t need a driving license for every state, just one issued by the state where you are a resident. You don’t need a new marriage certificate when you move to another state. Your license plates are good in every state. And so on. The states may not pick and choose. Congress may declare how this is to operate, but what they may not do is single out individuals or groups—they may only make general laws (that is, laws that apply across the board). If some marriage certificates are accepted, then ALL marriage certificates are accepted, and Congress may not pick and choose.

Note that this applies even in the case of differing standards. For example, in about a third of the states, first cousins may marry without  restriction. In the rest, either restrictions are placed on the issuance of marriage licenses, or it is banned outright. The thing is, only Arizona and New Hampshire have laws on their books that declare cousin-marriage by residents of another state void (i.e. the state would not consider you married). I could find no evidence of prosecution of these laws in recent times, and I suspect the laws would be struck down on equal protection grounds without even reaching Article IV (since the courts don’t seem to like it much more than the Tenth Amendment). So, note well, states that ban certain marriages by their own citizens accept those approved by all other states.

Where does this leave our current situation with “gay” marriage? The same place every other legal act of a state leaves us—with Article IV requiring that all other states recognize ALL marriages approved by other states. And a federal government that is required by the Tenth Amendment to recognize ALL marriages approved by the states. It is really that simple. And it means a lesbian couple married in New York that moved to Texas would have to be treated by Texas as validly married, and afforded all the rights and privileges of a married couple. Of course, Texas could refrain from approving any same-sex marriages, if that is what their legislature and people decide.

Per the US Constitution, the ‘battle’ was over once the first state approved same-sex marriages. At that point, all other states have to recognize those marriages. Moral objections cannot override the Constitution. Distaste for someone’s choice of marriage partner cannot override the Constitution. Given that it takes 38 states to amend the Constitution and 13 have already approved gay marriage, and other states have permitted civil unions, it is very unlikely that 34 states (not to mention 2/3 of each the Senate and House) would be willing to sign-off on a Constitutional change to reverse this. The Founders would have offered secession as an option, but the Civil War pretty much put paid to that notion.

Is there a solution? Not one that will satisfy the American right. Those of us who value individual liberty and believe in limited government think that the best solution is to get the government out of the marriage business completely. Handle all personal relationships with contract law without any need for state approval. In other words, I assign via contract, declaration or other document certain rights and privileges to another person or persons, and the state honors them. Any personal agreement with another person to stay together would be governed by a contract we worked out (rather than one imposed by the state as is the case with marriage). And any ceremony that solemnized such an agreement could be conducted in the church, synagogue or mosque of your choice, of if not religious, by any public declaration you chose. Frankly, the State of Illinois’ approval of a marriage, mine or any other persons, is meaningless to me. They shouldn’t have a say. Period.

This post came about because of the convoluted cases about DOMA and California Proposition 8. The issues raised were odd (e.g. if a proposition is found unconstitutional in a state and the executive authority declines to appeal that ruling, are those who proposed the proposition entitled to appeal). The decision was odder still, being narrow in scope and with Justice Kennedy basically saying that those who object to the 5-4 ruling somehow hate the human race. A simple clear ruling based on what I wrote above would have left the issue in the hands of the people, where it belongs. Yes, their hands are tied somewhat by Article IV, Section 1, but they have the power to change that if they so desire. That said, the havoc that could be wreaked by a badly worded Amendment that tried to revise Article IV could be nightmarish, even to a conservative appalled at the next-door neighbor women married to each other.

Bottom line, the Constitution doesn’t give any wiggle room. From my perspective, this is a good thing.

About Stephen Adams

The founder of this site, he has a Bachelor of Science degree in history from Elmhurst College. He is an IT Director that has worked for several major global companies. He has studied the Constitution and Founding Fathers extensively and his hobby is Constitutional Law. He blogs under the “Founder’s Blog”.