Guest Blogger

Instruments of Injustice: Why Bans On Marriage Are Unconstitutional

Filed By Guest Blogger | March 12, 2010 1:30 PM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: constitutional amendment, gay marriage, marriage equality, Prop 8, Prop. 8, Ryan Secord, same-sex marriage

Editors' Note: Guest blogger Ryan Secord is a recent graduate from Michigan State University where he studied political science and journalism. He worked for the Capital News Service as a state and federal government correspondent, the Hillsdale Daily News, and occasionally writes opinion pieces for the This is part three in "A Queer Endeavour: California's Proposition 8 and ryan_secord.jpgWhy State Laws Banning Same Sex Marriage Are Unconstitutional," a three part series examining marriage bans from the perspective of a straight man. Parts one and two have already published this week.

With the publication of Rights of Man, Paine, in congregation with the progressive thinkers of his day, including Thomas Jefferson and Benjamin Franklin, painted in a rebuttal to Edmond Burke's Reflections on Revolution in France. "Rights are inherently in all the inhabitant," Paine wrote. "But charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few... They... consequently are instruments of injustice.

To understand why bans on same sex marriage are unconstitutional, immoral, and counter-intuitive to the American ideals of freedom and equality one needs only to look at the history that our country has been founded upon, and what has kept us together as a union for this long.

Firstly, and most obviously, the Declaration of Independence made a bold statement regarding inalienable rights in terms of the human perspective. The notion that we are all created "equal" is seriously undermined by the notion that we are creating second class citizens in this country by allowing rights to a majority while denying those very same rights to a minority.

Thomas Jefferson said in his first inaugural address something that echoes both unity and equality within this nation that parallels the current debate over marriage equality in America.

"All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression."

The will of the majority is always to prevail in democracy; however, a set of checks and balance systems in all facets of government has been in place since the beginning of this nation to prevent the majority from trampling upon the rights of the minority.

Under this argument made by Jefferson so long ago, those in the minority who do not have equal rights to the majority are in a state of "oppression."

What Are Equal Rights?

But what are equal rights? How do we judge a relationship between two adults of the same sex as being equal to that of those of the opposite sex? The answer to this conundrum was founded in the Reconstruction era after the Civil War in the embodiment of the 14th Amendment.

The 14th Amendment defines equal rights with such direct vigor and language that it is almost impossible to believe that same sex marriage is illegal in 31 states today.

Amendment 14 explicitly states: "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; nor deny to any person within its jurisdiction the equal protection of the laws."

The key issue here is the final statement, restructured here: "Nor shall any State... deny to any person within its jurisdiction the equal protection of the laws."

Yes, it was worth reiterating twice because of the how meaningful the statement is.

When you look at the quote right from Forefather Jefferson's mouth regarding the powerful connection between the protection of rights for a minority and its correlation with the language of the 14th Amendment, one can only come to the conclusion that bans on same sex marriage are inherently unconstitutional.

This very same argument was applied in an instance where a specific marriage type was illegal in the 1960's, prompting sheriffs deputies to storm a home and arrest a couple who were sleeping peacefully in bed simply for being married.

Interracial Marriage

Loving v. Virginia was a landmark case in U.S. history where a white man married to a black woman was arrested while visiting relatives in Virgina. Their crime: Interracial marriage.

When they went before a judge they were found guilty for being married and were sentenced to jail time, the judge at the time saying: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages.

The fact that he separated the races shows that he did not intend for the races to mix."

Appeals were made and finally the Warren Court, (U.S. Supreme Court under Chief Justice Earl Warren), took on the case.

In a landmark decision, the interracial couple was found not guilty for being married, and the Warren Court ruled: "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

The application of the 14th Amendment allowing two consenting adults to marry to meet with the needs of constitutionality prevailed in this instance, and will surely be the foundational arguments for same sex marriage in this country in the 21st century.

Activist Judges

But what about activist judges? Conservatives like to argue that the judiciary "legislates from the bench", and therefore undermines both the legislative process and the will of the American people. This concept of an "activist judiciary" is fundamentally flawed for two core reasons:

  1. The separation of powers, (i.e. the judiciary, executive and legislative branches), were designed as a check and balance system to prevent one of the branches from gaining too much power, or imposing majority rule upon the minority. It is, in fact, the job of the judiciary to "interpret" the laws as organized under this structure. Therefore, when a judge overturns a law or another ruling stating that, for example, miscegenation, (interracial marriage), is illegal, they are not performing an activist will upon American Rule of Law; rather they are interpreting it, and correcting any mistakes made by the other branches as interpreted by the language of the Constitution.
  2. Without this interpretive power the other two branches and their power would go seriously unchecked and the rights of the minorities of this nation would be in serious jeopardy. For example, a Gallop Poll taken in 1954 shows that 98 percent of Americans disagreed with interracial marriage. In 1968, during the Loving v. Virginia trial, 73 percent of Americans disagreed with interracial marriage. After interracial marriage was legalized in every state, in 1983 50 percent of Americans disagreed, while in 1997 37 percent, and 2007 only 17 percent. The data is linear and the regression of disagreement came with time because the court had mandated the proper interpretation of the Constitution well before the country was ready to accept miscegenation. This is where Abraham Lincoln's Instrumentalist Theory comes into play.

The regression of disagreement to miscegenation holds two very important points that can be taken into consideration when same sex marriage is on the table for debate.

When Lincoln decreed the Emancipation Proclamation, (the abolition of slavery and the freeing of the slaves), it was an extremely unpopular endeavor even in the north. Yet, he did away with the disgusting practice of slavery because he knew that eventually, like with miscegenation, the people would come to accept it. This was termed the Instrumentalist Theory: "The government will do for the people what the people cannot yet do for themselves."

This is exactly what was applied to Loving v. Virginia by the Warren Court and the same liner regression of disagreement that we saw with miscegenation after the decision was made applies to the concept of same sex marriage. In 2000, same sex couples wouldn't have dreamed of being treated equal to straight couples, let alone be able to marry. But now in 2010, we have six states including Washington D.C. allowing same sex marriage. The rate of approval is at an even faster pace than what we saw with miscegenation.

Therefore, by applying the Instrumentalist Theory to the concept of same sex marriage, eventually the people will adjust, and it will just become another issue that is looked back upon by future generations in horror because these rights were denied at one time.

Separation of Church and State

Finally, we get to what would seem the easiest point of all to make in this argument: the Separation of Church and State.

The Americas were originally colonized by those who sought freedom from religious oppression. These people chose to flee Europe and the stranglehold of the Church of England and the Pope's Catholic Church.

When the constitution was written, Thomas Jefferson, (who coined the term Separation of Church and State), as well as other key members of our forefathers advocated for no state sponsorship of religion, thus advocating for a separation between church and the newly born state.

In a letter to the Danbury Baptist Association in 1802, Jefferson said: "Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and State."

Thomas Paine, with his own disdain for religion brought an even more voracious argument to the table: "We must be compelled to hold this doctrine to be false, and the old and new law called the Old and New Testament, to be impositions, fables and forgeries."

When these men, so intricate in the creation of our union have such strong words protesting religion, it becomes more and more clear that Christian idealism has no place in the rule of law of the United States.

To drive the point home, I will invoke the Treaty of Tripoli, where then President George Washington says: "As the government of the United States of America is not, in any sense, founded on the Christian Religion..."

The greatest point to be made here is that the fundamental argument baring same sex marriage is primarily an Abrahamic, Judeo-Christian one.

When it is both blatantly apparent that our forefathers not only had a general disdain for religion, but they sought to keep it out of politics all together, one has to wonder how Prop. 8 can be justified from any point of view albeit religion, (not to mention the fact that $40 million in donations for its passing came directly from religious organizations).

Case and point, there is no realistic argument outside of a religious pretext that can be fundamentally argued as a sound reason to deny same sex couples marriage rights under law.


While we have discovered both the history and discord of our nation within its turbulent battle to both provide and deny same sex benefits, one needs to only look at the original intention of our government and what it was created to establish. Unification of a people was desired under the concept that natural law inherently breeds equality, not the other way around.

While our forefathers fought and died to preserve this notion, the religious sects they fought so desperately to keep out of our politics spit on the graves of patriots as both the constitutionality and the fundamental moral obligation to promote equal protection under law is being ignored in favor of a Christian Fundamentalism.

With a formal understanding to use history, constitutionality and a moral objection to fight this discernible intrusion into our democracy that has been displayed within this article, we can take steps today to promote both equal rights, and prevent issues like Prop. 8 from ever again spoiling our politics.

"All men are created Equal... No matter how hard you try, you can never erase these words." -Harvey Milk

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A. J. Lopp | March 12, 2010 3:36 PM

I do not doubt that your intentions are good ... but in the current political climate, promoting any argument to the effect that marriage bans are unconstitutional (either federal or state) runs the potential risk of encouraging those who promote constitutional amendments. Thus, to be responsible, one needs to be keenly aware of the political situation before making a big noise using such arguments.

Here in Indiana, we have managed to block a state constitutional amendment --- but only by agreeing that the legislative ban on the books is unlikely to be overturned. Were a court to indeed declare it unconstitutional, it is my reading of things that a constitutional amendment ban would slide thru the Indiana statehouse like crap thru a goose.

So ... discuss such arguments if you insist, but also be aware of the Pandora's boxes that you could be opening in some jurisdictions.

As I see it which is apparently different than most who seem to be in the position to decide such things, and at the cost of alienation of friends and family, to get married in this country, you have to get a marriage license. The marriage license is basically a state controlled contract. If it is true that people are to have equal rights under the law, then who can those rights be equal if some are denied those rights? Since there is supposed to be a separation of Church and State, the issue of "Religious Values" should have no place in this. Personal religious views should have no place in this. State's rights should have no place in this. Local ordinances should have no place in this. To deny the right of marriage for any reason is simply a violation of someone's personal liberty as I see it. While I consider myself a Christian person, I also oppose any laws that put the finger prints of any religion on the workings of our government. To do so will lead us to the place where we will only have the rights the majority allow us to have. This should not be the case as this government was set up as a Republic ( I know some find that term a bit hard to understand ) it is supposed to protect the rights of the individual. Denial of a right to some because the majority are uncomfortable with a group having that right opposes the basic foundation this country was supposed to be built upon.
Now it is time ot get off my soap box.

the_czarina the_czarina | March 14, 2010 11:58 PM

A straight ally myself, I find your case as presented is reasoned and compelling to a rational and sane audience, Ryan. However, as of today, we have jumped, not crept, 'Through the Looking Glass' and 'forward' to '1984'.

You are a little late using the Constitution and the Enlightenment values and actual words of Thomas Jefferson and Thomas Paine, visionary heroes of mine and Christian-disapproving Deists, as a solid base for much:

Because the Texas School Board; as you know highly influential in textbook publishing for many of the country's public schools and certainly for the millions of students in Texas; has revised history.
In a decision that has repercussions far wider than the obvious no-brainer fairness of equal marriage and full equal rights for GLBT individuals, these Ultraconservative Christian Theocrats have revived Newspeak:
War is Peace, Freedom is Slavery, Ignorance is Strength."

Thomas Jefferson has been replaced by Thomas Aquinas and John Calvin.
The Founding Fathers didn't really codify in the Constitution the separation of church and state.
Christianity and it's 'moral values' are superior to other religions and world views and are at the core of our country's existence.
Without Thomas Jefferson and Thomas Paine to fight back with their stirring words and carefully crafted documents; hell, why not?
Jefferson Davis is as important as Abraham Lincoln.
Joe McCarthy was not such a bad guy after all.
Hispanic-Americans are invisible.
If Martin Luther King is discussed, the Black Panthers must be too.
Ronald Reagan is a hero of epic proportion.
Phyllis Schafly, the Heritage Foundation, the National Rifle Association and the Moral Majority ~ soft-balled with praise ~ are worthy of valuable time in a full social studies curriculum.
And 'taking personal responsibility' is the answer for issues of sexuality and teen suicide.

This is huge. GLBT Rights being denied on all fronts is the canary in the coal mine.
It is the early scent of the real possibility of Fascism & Theocracy taking over here.
(Remember, we have the sub rosa The Family too. I am not a conspiracy theorist ~ I am a total skeptic ~ but I cannot discount connections.)

I have never been an alarmist. But revisionist history taught in public schools is the real deal.
I have been discussing this briefly with an educated gay male Canadian friend during the last 24 hours. He too believes my metaphor that this needs to be taken as seriously as a Stage IV cancer metastasis of the American ideal:
He states: Proceed at your own peril.

"When Fascism comes to America it will be wrapped in the flag and carrying the Cross" ~ Sinclair Lewis, 'It Can't Happen Here'.