Today is the 141st anniversary of the 14th Amendment to the Constitution of the United States. Under the Equal Protection Clause of the amendment, it forbids states from denying any person "life, liberty or property, without due process of law" or to "deny to any person within its jurisdiction the equal protection of its laws."
According to the United States Government, the 14th Amendment "greatly expanded the protection of civil rights to all Americans and is cited in more litigation than any other amendment."
And then along comes Congress, and in a fit of ignorance in 1994, enacts the Defense of Marriage Act. I'm no lawyer, but if I played one on television, it would seem to me that the 14th AMENDMENT trumps the Defense of Marriage ACT.
If I read the 14th Amendment correctly, the United States Congress is more than compelled to use its constitutional power to force states to recognize marriages performed in other states - same-sex or otherwise. But DOMA clearly states that no state has to recognize same-sex marriages performed legally in other states.
So, listen up Amendment 14~! Don't break out the champagne just yet. We have acts to consider. Or do we?
I guess a brief history lesson is necessary at this point. More, from the Library of Congress:
The 14th Amendment to the Constitution was ratified on July 9, 1868, and granted citizenship to "all persons born or naturalized in the United States," which included former slaves recently freed. In addition, it forbids states from denying any person "life, liberty or property, without due process of law" or to "deny to any person within its jurisdiction the equal protection of its laws.
By directly mentioning the role of the states, the 14th Amendment greatly expanded the protection of civil rights to all Americans and is cited in more litigation than any other amendment.
Expanding on the information provided by the Library of Congress, and making it easier for the average citizen to read, there's this from Wikipedia:
The amendment provides a broad definition of citizenship, overruling Dred Scott v. Sandford (1857) which had excluded slaves, and their descendants, from possessing Constitutional rights and was used in the mid-20th century to dismantle racial segregation in the United States, as in Brown v. Board of Education (1954).
Its Due Process Clause has been used to apply most of the Bill of Rights to the states. This clause has also been used to recognize: (1) substantive due process rights, such as parental and marriage rights; and (2) procedural due process rights requiring that certain steps, such as a hearing, be followed before a person's "life, liberty, or property" can be taken away.
The amendment's Equal Protection Clause requires states to provide equal protection under the law to all people within their jurisdictions.
And this, specifically regarding the 14th Amendment to the United States Constitution, and the Defense of Marriage ACT.
The constitutional issues most relevant to DOMA are the Due Process and Equal Protection Clauses of the Fourteenth Amendment, which is concerned with the definition section of DOMA and the Full Faith and Credit Clause, which is primarily concerned with the second section of DOMA.
A right to marriage -- at least "marriage" defined as one man and one woman -- overriding the provisions of state law, was found in Loving v. Virginia.
Seems to this television lawyer that Congress over-stepped its bounds on this one. DOMA appears to violate the 14th Amendment, violating the Equal Protection and Due Process Clauses of the Amendment.
But wait, it gets more interesting...
On Wednesday, Massachusetts filed a lawsuit challenging DOMA, titled Commonwealth v. United States Department of Health and Human Services. Here's a pdf copy of the complaint.
In the lawsuit, Massachusetts Attorney General Martha Coakley alleges DOMA violates the 10th Amendment to the United States Constitution, specifically the Spending Clause of that particular Amendment. The 10th Amendment, by the way, is the 12th article and the 10th and final amendment to the Bill of Rights.
Among several things, the lawsuit argues DOMA requires the state to violate the constitutional rights of its citizens by directly interfering with Massachusetts' longstanding sovereign authority to determine who it determines are "married" and places the state in the position of choosing whether to adapt its programs to fit federal law or limit the ability of the tax-paying residents of Massachusetts from having full equality, as enshrined in the Constitution of the United States of America.
It seems clear to this journalist (and television lawyer) that the United States Congress cannot compel the various states to violate their responsibilities to uphold the constitutional rights of their own citizens, in violation of both amendments.
Nor can they write an act that violates at least two amendments to the Constitution of the United States.