Columbia, SC — A similar constitutional analysis should lead the U.S. Supreme Court to what seem like conflicting rulings on the same-sex marriage cases before it.
Hollingsworth v. Perry presents the question of whether California’s Proposition 8 outlawing same-sex marriage violates the 14th Amendment guarantee of equal protection of the law.
Nowhere in the U.S. Constitution is the federal government given any role with regard to marriage. Marriage, divorce, custody and allocation of marital assets traditionally have been reserved to the states. Consistent with our system of federalism, the U.S. Supreme Court loathes striking down state constitutional provisions.
The 10th Amendment makes clear that “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.” The Supreme Court could rule that laws regarding marriage in California should be left to the citizens and the courts of California. It also could rule that the case cannot be decided on the merits because the challenger lacked standing to bring suit.
Just because there is a struggle within California about this issue does not mean the court should step in, take over the issue and decide the matter with finality, not just for California, but for all the other states as well. Same-sex marriage has been around for a relatively short time; mandating that it now must be legalized is a bold step our Supreme Court will likely not take.
United States v. Windsor tests the constitutionality of the Federal Defense of Marriage Act. Federal and state courts traditionally have recognized that a marriage lawfully performed in one state should be recognized as valid in the other states. This is required by Article IV, Section 1, of the U.S. Constitution known as the full faith and credit clause.
The court may conclude that the Constitution confers no power on Congress to regulate marriage or to deny statutory benefits, including tax breaks, to people united under the law of their state in same-sex marriages.
Many judges refer to themselves as “judicial conservatives.” By this they mean that courts should not legislate or assume powers for themselves. Likewise Congress should not legislate in areas other than those set forth in Article I of the Constitution. Using this approach, the Supreme Court should refuse to overturn Proposition 8 and then declare the Defense of Marriage Act an unconstitutional exercise of federal power not conferred upon the Congress.
Joel W. Collins Jr.