In April the Supreme Court will hear arguments on same-sex marriage. The Defense of Marriage Act has already been stuck down; the act wasn’t defining marriage but reaffirming the definition that already existed.
The state has regulated marriage for a couple of centuries but has done so under the parameter that existed: a marriage is between a man and a woman. Marriage wasn’t created by the state, its definition has existed for more than two millenniums. So, where does the state get the authority to redefine anything it didn’t create?
Federal justices have ruled that this definition violates the 14th Amendment. The 14th Amendment was passed in 1868 to address states that had long denied blacks, slaves, their unalienable (God-given) right as individuals – their freedom. Its intent doesn’t apply to same-sex marriage. Under the definition of marriage, no individual is denied to marry as long as such a union fits the definition of marriage. The disparity of rights afforded to heterosexuals are denied under civil unions for homosexuals, thus, a denial of equal protection. However, those disparities are alienable (state given) rights, disparities the state can rectify through legislation without redefining marriage.
For federalism to exist, the Constitution had to be ratified by the states, therefore, the states are very much a part of the separation of powers in this republic. Thus, when sovereign states legislated what its citizens agreed to, in a referendum, reaffirming the existing definition of marriage, the courts have overreached, usurping states rights.
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Russell C. Fette