Federal Appellate Court Strikes Down Defense of Marriage Act - Judge Right, for the Wrong Reason

By Douglas V. Gibbs

Discussion of the issue of Gay Marriage is a quick way to create an argument. The people who support homosexual marriage are as passionate about their support as the opposition is about their stance of morality.  When discussing this issue, however, my first question is always: Why is government involved in marriage in the first place?

Since government has gotten involved in marriage, however, we must take a look at the issue from a legal point of view.  As a Constitutionalist, I am an avid supporter of the limiting principles of the Constitution, and a defender of State Sovereignty as described by the Tenth Amendment.  Marriage is not listed as an authority anywhere in the Constitution, so the federal government has no power over the issue. In line with the Tenth Amendment, marriage is also not prohibited to the States, therefore, it is a State issue.  For that reason, the striking down of the federal Defense of Marriage Act by The 2nd U.S. Court of Appeals through a 3-judge panel was a correct decision, but an unconstitutional action.

Gay marriage is a State issue, so the federal courts have no authority to rule on the case. They may, however, issue an opinion that the federal law is unconstitutional.  Based on that opinion by the court, the United States Congress should then reconsider the law, and if they don't, and if the people agree with the courts, it is up to the populace to vote in representatives that will repeal the unconstitutional law.  The State legislatures also have the authority to nullify the law by refusing to implement it on the grounds that it is null and void because of its unconstitutionality.

The federal ruling was based on the 14th Amendment's Equal Protection Clause - a clause written to protect the emancipated slaves, and their children, from mistreatment under the law by the former slave States.  The clause does not apply to behavior.  The willingness to commit adultery is a sexual behavior, and is therefore not protected under the Equal Protection Clause - and in the same way, homosexuality (which is also a sexual behavior) is also not protected as such under the Constitution.  The gay lifestyle is a behavioral decision, and the participants of that sexual behavior have no Constitutional Right to force institutions to change their definition of marriage.

The federal law regarding gay marriage is indeed unconstitutional, but the courts ruled that way for the wrong reason - and shouldn't have been ruling on the issue at all in the first place. . . or at least they shouldn't have at the federal level.

A State initiative, like Proposition 8 in California, should never have reached the federal courts. In that case, the State Supreme Court's decision is the last legal decision. All federal rulings on that State Constitutional Amendment are unconstitutional, and are therefore illegal.

-- Political Pistachio Conservative News and Commentary

NY Appeals Court Strikes Down Defense of Marriage Act - Fox News