Cameron Kegan’s article “Why Any Federal Law Defining Marriage Is Unconstitutional” was published at GraniteGrok.com on December 13, the very day Biden signed the new federal law “Respect for Marriage Act.”
I agree that this RFMA is unconstitutional, although I am four square in favor of the right of gay people to marry. Allow me to sort through some confusing facts. And then to analyze the conservative position on — wait for it — sex.
I’ll start with my sense of the hierarchy of constitutional principles (which federal law must bow to, of course, of course.):
Article I, sec 8 grants power to Congress to legislate in the 18 enumerated areas. For example, Congress can enact a law to establish a Navy, to establish federal courts inferior to the Supreme Court, to coin money, etc. If marriage ain’t on the list, and it ain’t, Congress should not touch it.
(They do, though, every day; they outrageously pass laws ultra vires, they did so with RFMA, which Biden signed today, Dec 13, 2022. And they’ve gotten away with it regarding Education.)
But each state can legislate on topics not given over to Congress in the aforementioned Grants bit. (Art I, sec 8.) NH can pass a health bill such as “Masks, everybody, masks.” Or it can add to the rights in the Bill o’ Rights by saying, for example, “No doctor in this state can abort a 15-week-old fetus, as that baby has a right to live.” Per Amendment 9: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
In short, legislatures have particular powers under the US Constitution to pass certain bills and not others. But even where they have a proper power to indulge in a certain area, someone may take the matter to court and say that it offends some other item in the parchment. I myself went to court in 2020 and said, “Excu-use me. You can’t order an injection that deprives me of my Fourth Amendment Rights.”
(The court should have said, “Oh, Mary dear, you are so right. We’ll make sure that the offending EO, or whatever it was, gets deep-sixed.” As usual, tho, they said, “Mary, go home and shut up. You lack standing.”)
Clearly, Congress has no power to enact a law about marriage. But if a state does so (and yes, it can), a person could still take it to court, claiming that the content of the law offends his/her Constitutional rights. If the racial purity laws of TX prohibited Black Susan from marrying White Joseph, Susan may win her right by the US Supreme Court’s opining that the TX law is invalid.
Could the state of Maine pass a law entitled Respect for Marriage, or just Marriage Equality, giving two females the right to marry? Yes. And if the new couple then moved to Nebraska, Nebraska would be forced to accept that the two females are married, thanks to Article IV: “Full faith and credit shall be given in each state to the public acts and judicial proceedings of every other state.” Plain as day. Good old Founding Fathers they had a knack.
Sex
Every human is born with a SEX — the person is male, female, or, rather rarely, is a hermaphrodite, having some combination of male and female. Basically, each person is stuck with the genitals and hormones God gave him or her. It’s not a social construct. It is anatomical.
As a separate matter, every person is born — or later acquires — a SEXUAL ORIENTATION, which determines whether they will develop a longing for a male partner or a female partner. You are hetero or homo. If homo, you may be pressured to keep your sexual orientation a secret.
Additionally, and this is something we did not know till recently, each person has a GENDER IDENTITY that is not necessarily identical to that person’s sex. Because of its oddity, this gives rise to jokes. Then the jokes make us believe that the topic is not a serious one. But it is.
By “gender identity” is meant the sense a person has of being in this world as a male or female. Since you know that my name is Mary, you can assume that I experience my role as that of woman. But you could be wrong. I might have a genuine self-identity as a man.
The fact is, I do identify as a woman, but the place in my brain that controls that gender-identity is not the same place that runs the decision as to whether I be hetero or homo. Some doctor specializing in the brain may be able to tweak the situation, and behold, I start to think I am a man.
My family will feel confused and maybe send me to a psychiatrist. I’ll probably experience “gender dysphoria.” My driver’s license reminds me that I’m female, but I now am uncomfortable as a female. I’m dysphoric. It will please me to dress masculine, and I’ll be delighted if someone calls me “Sir.”
I might even inquire about transitioning, e.g., having a sex-change operation. Or I might load up on testosterone which will make me grow a beard, and my voice will get lower. I’ll probably change my name from Mary to, say, Gregory. After a while, I can apply to the passport office to change my sex legally. Still, the whole thing is expensive and laborious and may result in the loss of many friendships. I think no one would choose to do it for kicks.
Note: I personally am vehemently opposed to encouraging transgenderism in children, but we’ll save that discussion for another day.
The Right To Choose One’s Sexual Orientation and One’s Gender Identity
As adumbrated above, folks don’t usually make a choice about their sexual orientation — gay or straight — they discover it, probably in adolescence. Who could thus say that a human being lacks the right to be gay? We don’t claim that anyone lacks a right to end up tall or short, do we? Your height develops outside of your control.
If a person’s gayness is given to them, like their height, it would be wicked to condemn them, or to ostracize them. Granted, there are societies today that do condemn or even kill a man for being homosexual or for “performing homosexual acts.” Lesbians do not get such a strong punishment, but they are often made to feel unwelcome and inferior. “They don’t fit the ideal of femininity.” Gee, is that so bad?
The culture of the United States made a change about 50 years ago whereby gayness became largely OK’d. The LGBT community, so-called, first demanded rights such as the right not to be refused a job or housing. This was easily tied into the civil rights laws of 1964 that protect everyone from discrimination.
Similarly, the Americans with Disabilities Act of 1990 — the ADA — extends equality to any person regardless of blindness, muscle paralysis, mental retardation, or whatever. The disabled are now entitled to “access.” Parking lots have places for the cars of the disabled; hotels have bedrooms and bathrooms that can be navigated by wheelchair-bound persons; schools are required to pay a teacher with sign-language fluency for deaf kids, etc.
Is It Constitutional To Legislate, Federally, for the Disabled?
You could call me a relentless or even an extreme advocate of states’ rights. Sure, I know that people move around a lot and so think of themselves more as a citizen of the nation than of their state. I know that some people want the US government to crack down on a given state for such-and-such naughty behavior. And I know that it’s more convenient for there to be One Law on a particular subject and not 50 separate laws. But there is good reason to maintain the separation of powers. Much depends on a state guarding its prerogatives, its turf, jealousy.
This article started out examining Congress’s new Respect for Marriage Act, which I think is blatantly unconstitutional. However, it may be easier to discuss the Americans with Disabilities Act. Ask: Is it constitutional? The first place to go to answer that is Article I, sec 8. There is nothing there to make us permit any federal legislation on the topic of disability.
Three parts of the ADA that no doubt have raised the dignity of disabled people are Title I’s requirement that any employer with 15 or more employees not discriminate against a disabled person when hiring, Title II’s requirement that all transportation be helpful to persons in wheelchairs (even to the point of offering paratransit, such as vans, where the regular bus is not able to host a wheelchair), and Title IV’s provision for special communications such as sign language translations of TV news.
Have a squiz at Article I, sec 8’s enumerated powers. Clause 3 says, “The Congress shall have Power to regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes.” This is known as the Commerce Clause, and federal legislators have used it to their heart’s content to tell states what to do.
Conservatives like myself object to stretching the word “commerce” to mean any aspect of business. The Framers intended it to mean the flow of goods across state borders. They wisely appointed the federal government as referee if one state was harming another in regard to commerce. Otherwise, one state may mistreat another. Fine, but that doesn’t mean Congress can legislate as to how much you should pay for a shirt at Walmart.
I believe Congresspersons have no right to make laws about labor. But they do so all the time. And the US president puts a Secretary of Labor into his Cabinet. Sorry, this is a state power. Each state can make rules for a 40-hour week, a minimum hourly wage of $8, or whatever. If a majority of people in a state want something different (say, a 35-hour week or a $4 minimum hourly wage), they should be able to get their state legislators to cooperate. If not, as a last resort, they can hitch a ride to another state.
Here is a way the feds could be helpful and yet not breach the Constitution’s separation of powers. It could offer model laws. I am used to this in Australia. For example, “Canberra” passed a Commonwealth (i.e., federal) Criminal Code to cover crimes within federal law and made it available to states. Three of Australia’s six states copied it: Tasmania, Western Australia, and Queensland. So the nation has three “Code” states and three “common law” states: New South Wales, Victoria, and South Australia.
To summarize thus far, regarding the ADA, I think its Title I requirement about hiring the disabled is not supported by the Commerce Clause because I think labor is not part of the interstate flow of goods. Yet I think the ADA’s Tile II mandate that wheelchairs be accommodated on buses is well within the Commerce Clause, as the transportation industry is largely concerned with the flow of goods across borders. (By the way, do you know that you can’t say “F!!k” on a Greyhound bus from NY to Boston? Or anywhere else. Congress did have the right to legislate that imposition of decency because buses are within its jurisdiction.
As for Title IV of the ADA, which tries to help the blind and the deaf in regard to communication, I recognize that the Founding Fathers did not foresee electronic communication and so did not add a 19th clause to sec 8. I think they would have done so just as they arranged other things that have a naturally national scope, such as the coining of money and the building of post roads. But it’s not there, so the ADA should not pretend it is.
Don’t forget, however, that the Framers gave us the means to update the parchment via Amendment. And don’t forget the Australian technique as a stop-gap. The feds can pass a law that simply offers a model law for any of the 50 states that choose to adopt it. This would respect states’ rights. I claim that we should insist on no overstepping by Congress.
Can the Feds Protect Rights As Such?
To have lived during the 1960s was thrilling. Improper authority got thrown over. It must have been like that in the 1500s when Luther posted his 95 theses on the door of Wittenberg Cathedral, complaining of abuse of power within the Church. Congress helped America (and the world) by cleaning out some of the bad practices of the US Government and turning that government into the backer of human rights. Note: in regard to outlawing the racist Jim Crow laws of the South, Congress was acting against state’s rights.
Congress Defining, or Defending Marriage
Sorry, at this juncture, I can’t hold forth on the constitutionality of Congress’s products, such as the Civil Rights Law of 1964, as I do not know if the feds can legislate to protect rights. Clearly, it’s not one of their specifically enumerated grants of power in Art I, sec 8.
Possibly Clause 18 could do it: “The Congress shall have Power to make all Laws which shall be necessary and proper for carrying into Execution the foregoing [seventeen] Powers and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” But I don’t know if “all other powers vested by this Constitution” includes the power to protect rights.
And since I’m thus unable to preach on the scope of Clause 18, I do not know if it is in Congress’s bailiwick to protect gay persons by stating their right to marry legally in every state.
I don’t even know if gays need this since the US Supreme Court ruled in the 2015 case of Obergefell v Hodges that all 50 states must refrain from forbidding a same-sex couple permit to obtain a marriage license.
Obergefell was based on the Fourteenth Amendment. That’s the post-Civil War amendment that says: “Nor shall any state… deny to any person within its jurisdiction the equal protection of the laws.” For example, you can’t prevent a slave’s descendant from voting.
As far as defining marriage, I think that job belongs to culture. I take marriage to be a wonderful commitment of two persons to each other and their potential progeny. Homo sapiens is a pair-bonding species, as any zoologist or anthropologist can attest. Some societies approve of polygamy (more than one wife per man). Some approve of the marriage of children (I am referring to an arranged marriage that could begin almost at birth but does not take effect till maturity.) Some approve of same-sex unions. It looks to me that the USA does not approve of polygamy but does approve of gay marriage. “That’s how it is.” The fact then defines marriage.
I realize that some conservatives have a personal distaste for gay people. Lately, they express their objection to gay culture as its being an onslaught on the traditional family. I don’t agree that gay marriage harms the more popular type of marriage between a man and a woman. I think it’s other forces in society, some of which are sinister and well-planned, that aim to cause a breakdown of family life.
If anything, a happy marriage of two men or two women adds to the strength of families. Although I’m as conservative as you can get, I don’t think a conservative argument against same-sex marriage has a leg to stand on. Some conservatives may say, “God does not want this,” but what God wants is not a criterion that the Framers invoked. They created a power structure that would give us maximal protection against tyranny. No comment on sexual mores.
To repeat, I think the RFMA and parts of the ADA are unconstitutional. Sure, I like their results — my wheelchair friends get to travel, and my lesbian friends get to marry — but any unconstitutional law is a threat to our survival. We can do better. Also, we can do better than cultivate divisiveness. Social harmony is at a premium now. Let’s get together and support the USA.
And let’s get sex indoctrination out of the schools immediately. I attribute sinister motives, not rights-based motives, to anyone who is trying to influence a kid’s sexual orientation or gender identity. No doubt it’s a crime to do that. Arrest the criminals!
