That Pesky Constitution

Has it occurred to anyone to wonder what the fuss is all about around extending the right to marriage to same-sex couples? Those who would define marriage as between one man and one woman, speak of activist judges running amok and a threat to one of the most fundamental of human relationships, etc., etc.

I got to wondering what it was that these so-called activist judges were doing, and I was directed to the US Constitution, specifically to the 14th Amendment, which says, in part:

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This is the problem, isn't it. Those pesky activist judges are forced by the 14th Amendment to examine all laws and apply the test of whether any law might "abridge the privileges...of citizens."

I suppose that is the reason President Bush and others want to amend the Constitution on the issue of marriage. Such an amendment would, in effect, say that the 14th Amendment does not apply to marriage laws.

Further, Article IV, Section 1 of the Constitution states that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." That means that a law passed by one state, for example recognizing same-sex marriage, must be accepted in every other state. (That would include marriages that are legal in one state but not in another.

I recall that in my youth some young people who didn't have or didn't want to get parental approval for marriage because they were considered too young to enter into marriage without parental approval would go to a neighboring state where the age of consent was lower and get married. Then their marriage had to be accepted as legal in their home state.

Section 2 of Article IV further states that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." That means that no state can deny a right to a citizen that they would have in another state. I think, by the way, that's one reason why the US Government, under pressure from the several states, forced Utah to renounce plural marriage as a condition for entry into the Union.

It is true that discrimination was originally built into the Constitution with respect to slavery, and it took a civil war and a couple of amendments to the Constitution to change that.

With any luck, we won't start writing discrimination back into the Constitution. If we did, where would it end?