Is Marriage the Government's Business?

[Sisyphus]

...namely, Congress is specifically granted the power....

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Your beliefs notwithstanding, the fanatics on both sides of this question know damn well the question could be readily resolved with Federal legislation. *

It's within the purview of the Congress to address the issue with legislation should it choose to do so. However, neither side will force the question there because each side is afraid it will lose a (pardon the pun!) straight up-or-down vote.

So, each side tries to half-step their way through the question by working our imperfect....but still about the best approach out there...system of federalism and judicial review to their respective advantage. Each tries to find the "right" set of facts (read, most favorable to their POV) to use as a test case. It's a semi-free country...so it's still their right to do so.

Originally Posted by DFW5Traveler

10th Amenedment
The powers not delegated to the United States by the Constitution (again, there are 17 enumerated powers), nor prohibited by it to the States, are reserved to the States respectively, or to the people. (The people voted against the measure.)

"The people" of the state in question actually voted for a state measure. The problem was the measure they voted for led other state citizens with standing to sue to think the state measure deprives them of the....what's that phrase again??? Oh, yeah....

Originally Posted by DFW5Traveler

14th Amenedment
Section 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; (where is due process in overturning a legal vote.) nor deny to any person within its jurisdiction the equal protection of the laws.

....the equal protection of the laws....

So, they filed a lawsuit arguing that it was NOT a legal vote BECAUSE the measure being voted on is unconstitutional in that it denies them the equal protection of the laws they are entitled to by the 14th Amendment. The judge agreed with them. Now, the ball is in the state's court. They can certainly appeal the ruling should they choose to do so. Or, they can try to craft a new referendum to be voted on with language that will pass constitutional muster.

This looks like it may finally be the case that takes the question of same sex marriage all the way to the Supreme Court. Maybe it will, maybe it won't. My suspicion is the side that thinks it would lose there will blink first. Neither side wants to lose there & THEN go into Congress trying to get a law passed that directly reverses a recent SC opinion.

Still not quite sure what it is about all of this that bothers you. I just know that you're out to "constitutional law" lunch with what you've posted in this discussion about the 9th or 10th amendment precluding what has just been explained.

Congress could act in this area should it choose to. States can't act in a manner that denies U.S. citizens the equal protection of the laws...even if they have a vote of citizens of that state telling them that it's OK to do so. It's Civics 101....



* My opinion is that a Federal law that outlaws same sex marriage wouldn't pass Constitutional muster either but everybody that has their panties in a bunch over it is certainly welcome to try. It is further my opinion that those who are opposed to same sex marriage have moved the constitutional amendment game to the state level for precisely this reason....they're hoping they can find enough mutton-heads to swallow the "states' rights" argument....either because they really believe it; or, in furtherance of other agendas that would fail legislatively if addressed at the federal level.