Marriage Equality and the Constitution

One argument that some use against Marriage Equality sounds like this:

The “Founding Fathers” of our country never intended our Constitution to be misinterpreted in such a way as to allow for “gay marriage”.

Let’s examine that line of thought a bit. If we go back to the Federalist Papers and other documents of the time, it’s obvious that some of the Founders never intended racial equality or basic civil rights for all citizens to prevail. Some of the more religious founders even wanted their religion established or at least favored in the new democratic republic they were forging. Throughout the posturing, attempted manipulation, and wrangling, many of them projected their self-interest upon the fledgling nation. They were not superhuman saints, they were people just like us (or at least people like many of the white men we know).

The Constitution and subsequent amendments were intentionally left open in a non-prescriptive manner because some of the more open-minded founders (Madison, for sure) recognized the injustices in the contemporary culture. The amendment process and the first ten amendments (Bill of Rights) were intended to provide for minority and civil rights. The freedom of religion, the press, and assembly, along with the right to bear arms and many other specific rights, were spelled out at that time. Ample provision was left to abolish slavery, provide for equal protection for all under the law, and even to prohibit production and use of alcohol (for a short, strange period).

One issue that existed at the time but was not addressed was marriage. One can assume that marriage was considered to be under the purview of the church, but we don’t have much information about the founders’ intentions concerning marriage in the new nation. Some groups prevailed upon their states to ban interracial marriages and provide the first governmental intrusions into marriage. Marriage didn’t enter into the federal civil rights domain until it became a matter of taxation and property ownership.

With this historical perspective, we can begin to understand the current furor over marriage equality for gay men and lesbians. Now that marriage is firmly ensconced in the federal tax codes and other federal laws and regulations, it is clearly a federally-defined institution providing certain civil rights. Additionally, it is a religious issue that most churches hold dear. The establishment clause in the First Amendment of the Constitution was bypassed here by the organic growth of taxation and regulation. In all honesty, the current debate over marriage equality is a debate on the First Amendment and the establishment clause. This perspective imperils legislation such as the Defense of Marriage Act (DOMA) on the grounds that defending a religious definition of a federally regulated civil right crosses the line of religious establishment.

What are our options? We could do nothing and ignore the obvious First Amendment issues, pushing the matter to the states. This will leave an open path to constitutional questions regarding federal tax law for the Supreme Court to address. Alternately, the federal government could return the term “marriage” to the religious realm, opting instead to establish a parallel civil union system for everyone within the tax code. This might not satisfy those religious groups that oppose marriage equality, however, because they don’t have the power to control other religions that may espouse marriage equality. Another path would be to co-opt the word “marriage” into the Federal civil rights realm and provide full marriage equality to all citizens while removing religious “ownership” and control of the word. I’m sure there are other paths and perspectives that may yield other solutions. The current situation, however, is not stable.

What will we choose?