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DOMA, Marriage and the Tenth Amendment

Last year, during the GOP Presidential Primary, Texas Governor Rick Perry made a comment in Aspen, Colorado that left me scratching my head. During a speech to a group of GOP donors, the Governor stated, with regard to the New York law that legalized same-sex marriage, “that is their call; if you believe in the 10th Amendment, stay out of their business.” While most conservatives, myself included, have great reverence for the 10th Amendment, we do believe there are limits to its usefulness. There are cases in which it is important for national law trump state laws, so to prevent a breakdown of social order or the subjugation of the Natural Rights of free citizens. An historical example would be that of the 2nd Amendment. This national law, codified in our Bill of Rights, ensures that the right to bear arms is unalienable and that no state or jurisdiction under the United States shall have the authority to revoke this right. Few true conservatives would argue against the importance of the Second Amendment, and those who do will hear from the NRA soon.

By that same measure, I believe that Governor Perry’s initial giving of New York a free pass on their legalization of same-sex marriage was a dangerous interpretation of the 10th Amendment. I’m a strong states’ rights advocate, but I’m also an advocate for the foundational values of freedom, which have made American the envy of the world. The wholesale destruction of the definition of marriage is a serious threat to America’s culture, economy and national security. No state should have the right to destroy the definition of marriage as ordained by God, and handed down through centuries of recorded human history. I’m reminded of the ancient Roman statesmen, Cicero, who argued that the only legitimate government is the government that bases its authority on Natural Law, or God’s law. If a government passes laws that violate Natural Law, such as allowing abortion on demand in violation of the Natural right-to-life, or redefining marriage in defiance of the Creator, it is passing illegitimate law and has forfeit its own legitimacy on the issues.

The Constitution of the United States was designed to create a balance of power that favors freedom. As such, it crafts a balance between national laws, codified in the Constitution, and state laws. No state law may be nullified by national law, unless the national Constitution (considered the supreme law of the land) specifically forbids it (such as passing a law against private citizens owning firearms). Likewise, no national law may be nullified by state law, meaning that the protections for personhood embodied in the national Constitution should not be jeopardized by a state legislature that isn’t friendly to the lives of the preborn. This balance has maximized our political structure to favor freedom. It sets up a system whereby the most fundamental rights of man are enshrined in the national Constitution, with most other matters being left to the discretion of the states. Marriage is something so fundamental to American Culture that it should be addressed at the national level, due to a little-known provision of Article IV, Section I of the U.S. Constitution known as the “Full Faith and Credit Clause.”

The “Full Faith and Credit Clause” of the Constitution was a necessary provision to bind together the individual states into the United States of America. At the time of the Constitution’s crafting, the thirteen original states had no reciprocity in their legal decisions, which created a serious snare to the idea of nationhood. The decisions of courts and magistrates in one state weren’t binding in another state, which created chaos. Let’s use a modern example: assume that a person was convicted in South Carolina of being a sexual offender, and then moved to North Carolina. Without the “Full Faith & Credit” provision of Article IV, Section I, that offender would have to be retried in North Carolina, as South Carolina’s decision would not be respected in the jurisdiction of its northern neighbor. To remedy this, the framers of the Republic decided to include in the Constitution a provision that each state recognize the judicial preceding of the others. Marriage is considered a judicial proceeding and is, therefore, subject to the “Full Faith & Credit” provision.

In short, a Tenth Amendment interpretation on marriage policy, absent the Federal Defense of Marriage Act (DOMA), will end-up subverting the Tenth Amendment itself. The “Full Faith & Credit” provision is likely to be applied in forcing the other forty-nine states of this Union to legally recognize married same-sex couples from New York. This will destroy the very idea of state sovereignty by undermining the overwhelming majority of states’ objection to this altered definition of matrimony. The only thing holding back the tide right now is the Federal Defense of Marriage Act (DOMA), which is being challenged as I write by the Obama Administration. With DOMA out-of-the-way, there is no protection, short of an amendment to the U.S. Constitution, for the sanctity of marriage in this Nation. A veritable deluge of lawsuits will start flying against every sovereign state that dares refuse recognition of same-sex marriages from New York.

That’s why I believe the issue of same-sex marriage is not something that is simply a socially conservative issue. The fate of marriage is most certainly on the line, but so is the concept of states’ rights. So is the Tenth Amendment. Governor Perry would do well to reevaluate his position on same-sex marriage, or I believe he will have facilitated the demise of two concepts he himself supports: traditional marriage and states’ rights. I have long supported Governor Perry, and am strongly considering supporting him for President in 2012; however, without further explanation of his position on marriage, I cannot support him on both conscious and constitutional objections. The destruction of marriage by the subjugation of state sovereignty is not something I’m prepared to tolerate.

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