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While the Supreme Court decision in United States v. Windsor struck down section 3 of DOMA defining marriage for purposes of federal policy under the Fifth and Fourteenth Amendment, it did not address the issue legal recognition as between the states. As Chief Justice Roberts observed in his dissenting opinion: “The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their historic and essential authority to define the marital relation, may continue to utilize the traditional definition of marriage.” United States v. Windsor, 570 U.S. ____ (2013).
The Fourth Circuit decision upholding the Louisiana marriage law raises the issue states' rights. It should be noted that there is no express provision in the Constitution granting a person the right of marriage; not that the framers thought marriage unimportant, but rather it is a right retained by the people under the Ninth Amendment, and power reserved to the several states or to the people under the Tenth Amendment. Marriage is strictly a matter of state (not federal) law. Each state has the sovereign power to enact laws governing marriage. . See Williams v. North Carolina, 317 U.S. 287, 298 (1942) (“Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders”).
State laws, however, are subject to federal supremacy under Article VI, Clause 2 of the Constitution. In this regard, state marriage laws may not abridge a persons rights under the Fourteenth Amendment. The due process and equal protection provisions of the Fourteenth Amendment are explicit: ". . . 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." The assertion that the Tenth Amendment sanctions the right of a state to enact and enforce laws in violation of these constitutional protections is specious; and certainly contrary to decisions of the United States Supreme Court binding as precedent. See Loving v. Virginia, 388 U.S. 1 (1967); Zablocki v. Redhail, 434 U.S. 374 (1974); and Turner v. Safley, 482 U.S. 78 (1987). In order for the Tenth Amendment argument to prevail, the Supreme Court would have to overturn these prior decisions; and that is not likely to happen.
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09-28-2014, 07:03 AM
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