You know, part of this comes down to a First Amendment vs public policy issue. In theory, if a couple, gay or heterosexual, are married in a church by a member of the clergy, then by both the equal protection clause and the first amendment guarantee to freedom of religion, they should be married.
Of course it does not work this way, as the Mormons found out. The goverment has always reserved the right to restrict certain freedoms, which is why polygamy is outlawed in every US state. In theory, marriage is up to individual states with reciprocity in other states. After all, its not like carry laws in which you can just move your gun to the trunk at the state line to stay legal. It wouldn't make sense to dissolve a marriage and arrest a 20-year-old who married a 17-year-old in another state.
But Article four allows Congress some control over how this can happen. The 10th Amendment gives power to the states and the people if not claimed by Congress. The 9th amendment allows for the future by stating that just because they didn't think to put it into the Constitution does not mean that a right doesn't exist. This is why the 'right to privacy' can be inferred without being explicitly stated.
So, the ninth amendment means that a gay couple could marry since it is not prohibited in the constitution. But marriage is subject to the policies of individual states which by the 10th amendment have the power to decide for themselves. The fourth article seems to indicate that other states must recognize such marriages, but gives Congress the right to interfere and set conditions on the degree of reciprocity.
Bottom line, a 'Defense of Marriage' amendment is a political ploy and is not necessary. Article four already gives some leeway over how much 'faith and credit' needs to be given to gay unions in states that do not wish to do so. It might in practice create a hodgepodge of differing rules on inheritance, adoption, etc, but that is nothing new.
The United States already recognizes the laws of Louisiana, which are based on Napoleanic law and are slightly different from all of the other states. This is why on a lot of legal software you will see 'except Louisiana'.
Personally, I think trying to force this issue on the whole country at this time is a mistake, even though I believe that all adults should be able to commit to each other if they are mature enough to do so.
Quote:
Article IV
Section 1. 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.
Section 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
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.
|