I want to begin this piece by plainly stating that I stand in support of same sex marriage and in opposition to any law or practice that discriminates against anyone based upon their race, religion, gender, ethnicity, or sexual orientation.
This week the United States Supreme Court heard oral arguments in a case that challenges the constitutionality of the Defense of Marriage Act, a federal statute that limits the federal government’s recognition of marriage to one man and one woman. The petitioners in the case argue that the Defense of Marriage Act is unconstitutional because it denies same sex partners equal protection under the law and infringes upon the fundamental civil right to marriage. After witnessing two days of legal oral argument many court watchers are predicting that the Defense of Marriage Act will be found unconstitutional, not on equal protection grounds, but on the basis of the 10th Amendment by finding that it intrudes too far upon the ability of the individual states to legislate marriage within their borders. Such a ruling would allow the Supreme Court to avoid deciding the issue of Constitutional protections for same sex relationships. It is a time-honored tradition by the Supreme Court that if it can avoid deciding an issue, it will.
A decision based upon 10th Amendment grounds would basically toss the issue back to each state to decide. It would continue the status quo of relationships that have the force of law in one state but are completely disregarded in another. The ruling may also allow same sex marriages to be recognized for the tax purposes and federal benefits, even when that marriage is not recognized by a particular state. This outcome could become even more complicated in situations where a state administers a federal program such as social security disability claims. In theory I think that the full faith and credit clause contained in Article 4, section 1 of the Constitution obligates states to recognize all legal marriages in the state where the marriage took place. Thus, even a state that refuses to legalize same sex marriages might be required to recognize a same sex marriage performed in another state. However, I suspect that the reality will be that states where same sex marriages are not legal will continue to refuse to recognize those marriages.
If, as many expect, this issue is returned to the States, I do not expect Florida to take a leadership role in the legalization of same sex marriage. Historically, Florida has brought up the rear regarding issues of civil and human rights. Our schools were among the last in the nation to desegregate. We lead the nation when it comes to incarcerating children in adult prison, often sending more children to prison than all other states in the nation combined. Married women in Florida were denied the right to contract until 1943. In 2008 the Florida Constitution was amended to limit the State’s recognition of marriage to one man and one woman. Not only does this amendment preclude the State of Florida from giving legal status to same sex marriage, it also serves to preclude recognition of civil unions or any equivalent to marriage.
During the oral arguments Justice Scalia, as is his habit, drew the argument back to the founding fathers and their vision of the nation. For Justice Scalia the Constitution appears to be constrained by an 18th century world-view of morality and justice. However, we live in a complex technological society that could hardly have been envisioned by our founding fathers. Our experiences over the 225 years since our Constitution was first ratified have deepened our understanding of justice and human rights. This growth and change is reflected in our Constitution with the addition of amendments such as the 14th Amendment containing the Equal Protection Clause, which was added in 1868, following the civil war. It was under the equal protection clause that the US Supreme Court decided the case of Loving vs. Virginia in which the Court ruled that restricting marriage based upon racial classifications violated the equal protection clause of the 14th Amendment, thus making laws restricting inter-racial marriages unconstitutional.
One does need to be concerned that, if the Supreme Court rules only on 10th Amendment grounds, the Court could be opening the door to weakening the decision in Loving vs. Virginia. It is important to note that the State of Virginia raised the 10th Amendment argument in defense of its law against inter-racial marriage. The Court rejected this argument by finding that the right to marry is a fundamental civil right and that a state cannot deprive a person of such a right absent due process and a compelling state interest. However, the Court now finds that it should defer to the individual states based upon 10th Amendment grounds, one has to wonder if states could return to outlawing inter-racial marriages?
It is important to keep all this in perspective. Social change is often an erratic and conflicted process. When I was a child growing up in the 1970’s the very idea of same-sex marriage being legal in our state or country was almost inconceivable. Today that has changed and homophobia is no longer widely tolerated in our society. Hopefully, one day soon all people in our State and throughout our nation can have the right to have legal recognition of their relationships and families.