Constitutionality and marriage

Seven years ago I became a wife.  Five years ago I became a mother.  Today, I became a Texan.  I couldn’t be happier!  This city is gorgeous, DMV employees are nice, the flags here are clean, and I actually ate a waffle in the shape of Texas.  I’m still a stay at home mom with my children.  Now, instead of staying home while my husband goes to school, I stay home while he studies for the Bar exam.  Which has led to some very interesting discussions on topics like marriage and abortion (I’ll do abortion next).  The general public are very set on their definitions of right and wrong, and really don’t stop to look at things like legality and constitutionality when declaring that it is ‘right’ to allow gay marriage and ‘wrong’ to stop someone from killing a baby.  But the focus of this post is marriage.

The fact is, you do actually have to examine things like Constitutionality.  Declaring something is a right does not make it so.

Did you know the supreme court has actually already had a ruling on marriage?  Yes, there is precedent of the Supreme Court saying they have a vested interest in limiting the definition of marriage.  Their reasons are pretty intense, too.  Stuff about establishing the basis of the family and strengthening the foundation of society.  Basically, they said everything that conservatives are saying now and liberals are dismissing.  Fortunately, the Supreme Court has to look at previous decisions and follow precedent.  Unless they want to overrule the previous ruling.  Which would be EXACTLY what I have said would happen, again to the scoffs and scorn of every liberal reading my blog.

Let’s just look at what they said.  I want to impress upon you that these words have meaning.  I am quoting from a Supreme Court ruling; these words are the law of the land, and will be until the Supreme Court overturns this decision.  This isn’t me, as an ‘extremist’, spouting bigotry or religious ramblings.  This is the law as it now stands.


No. 1261.Supreme Court of United States.

Argued December 9, 10, 1889.Decided February 3, 1890.

“Certainly no legislation can be supposed more wholesome and necessary in the founding of a 345*345 free, self-governing commonwealth, fit to take rank as one of the coördinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment.” (italics added)

“Marriage, while from its very nature a sacred obligation, is, nevertheless, in most civilized nations a 344*344 civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal.”

So, what was this case about?  Idaho was blocking polygamists from voting.  If you practiced polygamy, you couldn’t vote.

“Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States, and they are crimes by the laws of Idaho. They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman and to debase man. Few crimes are more pernicious to the best interests of society and receive more general or more deserved punishment. ”

This was fought, as the LDS church felt that polygamy was an acceptable form of marriage.  The Supreme Court said, “No.”  Once it was the established law of the land the LDS church stopped practicing and instructed its members to follow the law.  And now there is another group again trying to change traditional marriage, with the decision working its way back up to the Supreme Court.  This is quite the conundrum, isn’t it?  If gay marriage goes before the Supreme Court, the only way they can allow it is by overturning this decision, making polygamy legal.


About whyimconservative

I'm a stay-at-home, homeschooling mom with a Biochemistry degree living in Austin. I love my kids, my husband and my country. I want to explain why I'm conservative.

Posted on June 4, 2012, in Homosexual Marriage and tagged , , , . Bookmark the permalink. 8 Comments.

  1. Hey. Long time no chat. I’m glad you posted this especially cause I think your point has weight. Precedent is important. However, as Matthew can second, there is a difference in a court opinion between the holding and dicta. The court can spend a long time reasoning through its justification but future courts are not bound by lengthy descriptions – just the part that establishes a rule for future courts. I would have to read this opinion in its entirety to tell what its holding actually is.

    While we’re in this discussion have Matthew tell you about Wickard v. Filburn if you don’t already know it. The worst case ever decided, but it has precedent. In another terrible case, called Kelo v. New London, Justice Clarence Thomas wrote an interesting line in the dissent that I actually agree with: “When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning.” I believe precedent is important but the constitution trumps it when a case like Wickard or Kelo is obviously subversive of the constitution. Then question becomes does the original meaning of the constiution encompass gay marriage somewhere?

    • Hey! I’ll look up the cases you mentioned. All the info for Davis vs. Beason is here, and the decision was only a couple of pages so it shouldn’t take long to look over. I wish the original intent of the Constitution is what mattered, but I think that is not the opinion of about half the justices right now. We’ll see, though, it’s heading to the Supreme Court. I have just been extraordinarily bothered lately by people saying that gay marriage is a Constitutional Right, when they have no idea what that means and haven’t ever studied the topic. They just keep repeating it, and enough people believe it that they ignore everything else. So I thought a little research on the Supreme Court and decisions on marriage might actually be relevant. I love hearing from you; keep posting on anything you find interesting.

  2. Good to hear from you again on this subject. You are right and Michael E. at NOM has written about extensive cases where the court has ruled that marriage is between a man and a woman. The opposition tries to claim that it was years ago and now the courts must evolve. The only way they get same sex marriage is if the court dreams up a new right.

  3. But you see, the Constitution also promises everyone due process and equal protection. So if heterosexuals have the right to marry the one person they want to, why don’t homosexuals?

    • Homosexuals are twisting the meaning of the 14th amendment to make is say something that it does not say. In order for the equal protection clause to apply, homosexual males would have to be marrying homosexual females and be denied their equal process and equal protection.
      The equal protection clause never meant you got to make up your own rules and laws and call it equal. The homosexuals are demanding an interpretation of the Constitution and the 14th amendment that applies only to them.

    • Why don’t polygamists have the right to marry?

      • That is my point exactly. How come homosexuals get a special interpretation of the Constitution that is not available to anyone else?

  4. How come not giving homosexuals equal marriage violates the equal protection clause but treating singles and married people unequally does not violate this. So obviously if not granting licenses to homosexuals violates the 14th then so does giving the marriage license itself. After all the giving of benefits to married people and not giving it to singles violates the 14th amendment.

    Again, if treating singles and married people unequally does not violate the 14th then so does treating heterosexuals and homosexuals unequally not violate the 14th.

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