Playing Fast and Loose with Marriage and the Constitution



By Stephen Z. Nemo (a.k.a., Mr. Curmudgeon):

In striking down the Defense of Marriage Act (DOMA), Justice Anthony Kennedy wrote that in defining marriage as between a man and woman, the intent of Congress was “to disparage and to injure those whom the state [New York], by its marriage laws, sought to protect in personhood and dignity.” Further, that “the significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for ‘when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States … DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”

Did you notice the high court used a Tenth Amendment (not Fifth Amendment) argument in declaring DOMA unconstitutional?

The Fifth Amendment protects the individual’s right to: a speedy and public trial; an impartial jury; to confront one’s accusers in open court; and to have an attorney represent them. And yet the high court uses the language of “state’s rights” to defend New York State’s recognition of same-sex marriage, while using the emotional arguments of same-sex advocates as the sole bases for declaring DOMA unconstitutional.

Justice Antonin Scalia confronts the use of silly emotionalism in place of sound legal reasoning in his dissenting opinion: “The majority concludes that the only motive for this [Defense of Marriage] Act was the ‘bare … desire to harm a politically unpopular group.’ Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state … but our respected coordinate branches, the Congress and Presidency of the United States.” DOMA’s supporters, said Scalia, are portrayed as “unhinged members of a wild-eyed lynch mob when one describes their views as they see them.”

Scalia then gets to the rationale behind the high court’s declaring DOMA unconstitutional: “The majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited … It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.”

The high court ruling, therefore, redefines heterosexuals as breeding stock in the service of humanity-extinguishing homosexual, same-sex unions.

What explains this judicial slight-of-hand?

The court suggests that Congress is powerless to define what constitutes marriage because the Constitution is silent on the federal government’s power to do so – the doctrine of “enumerated powers.” However, the Tenth Amendment clearly states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Why, then, is the obvious Tenth Amendment argument nowhere to be found in the court’s reason for striking down DORMA? I believe Roe vs. Wade provides the answer. The court imposed abortion on those states whose legislatures declared killing the unborn illegal. The court said the Constitution implied that a woman’s “right to privacy” trumped the Tenth Amendment’s mandate that the powers not granted the national government were “matters reserved to the States.” The court also decided the question of when life begins … for Americas’ fifty states.

You see, had the court upheld a state’s power to define the sanctity of marriage as between a man and a woman, it would have to acknowledge the state’s power to defend the sanctity of innocent life in the womb.

Instead, as Scalia noted, the court imposed its immorality on our nation to overturn the definition of “marriage that had been unquestioned in our society for most of its existence – indeed, had been unquestioned in virtually all societies for virtually all of human history.”

Moral questions are no longer matters decided by communities or states. Five out of nine robed demigods claimed jurisdiction over the individual’s moral conscience.

The Supreme Court now claims the Catholic Pontiff’s’ right of Ex Cathedra: declarations that define the faith and morals of church followers.

The American Republic is no more. We live under a court theocracy more in keeping with Iran’s robed, ruling mullahs.


  1. Marriage as one man and one woman was not created out of hate for gay people but to encourage the man and woman to join together to care for their offspring. With this thinking it should also include polygamy so they don't feel hated and left out.

  2. Mr. 'C'. There is little doubt that many of our laws have been bastardized by federal st:-) ate and local courts. This ain't the last..