Fundamental Rights within the Constitution and Confines of Common Society

February 17, 2014 Updated: April 24, 2016

Same-sex marriage is making national headlines once more.  In Virginia, federal district court Judge Arenda L. Wright Allen, an Obama appointee, struck down the state’s constitutional ban on same-sex marriage.  The common threads in recent same-sex marriage challenges for defendants are federalism – protecting their rights to regulate marriage without federal intrusion, longstanding traditions of “traditional marriage” and “family values,” and the argument that same-sex marriage is not an inherent or constitutional right.  Plaintiffs’ contend these laws are unconstitutional on due process and equal protection grounds.

While this case is not much different from the previous cases recently decided on the same issue, it is important to point out the argument of defendants that marriage is not a fundamental right.  This argument has been made before, yet, while it may hold some form of authenticity, each state invalidates their own argument on this topic on simple Fourteenth Amendment grounds.

Judge Allen, in an amended version of her decision, which originally quoted the Constitution rather than the Declaration of Independence, recited the words of Thomas Jefferson (a Virginian coincidentally enough) stating, “Our Declaration of Independence recognizes that ‘all men’ are created equal. Surely this means all of us.”  Judge Allen also peppered throughout her 41 page decision, text of the Fourteenth Amendment, which 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.”

Despite no stipulation in the Constitution regarding marriage rights or marriage equality, the Fourteenth Amendment affords equality to everyone meaning if a state enacts a law or a particular practice, it must be available to everyone unless the state has a “compelling reason” to deprive one’s right.  While Section 15-A of the Virginia constitution states, “That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions…Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage,” the Supremacy Clause of the United States Constitution trumps the state law.

Judge Allen, however, contended in her decision that “There can be no serious doubt that in America the right to marry is a rigorously protected fundamental right. The Supreme Court has recognized repeatedly that marriage is a fundamental right protected by both the Due Process and Equal Protection Clauses of the Fourteenth Amendment,” but there is still no inherent Constitutional right. The federalism argument, again is valid, but the United States Constitution has placed restrictions on certain state practices in the name of protecting “fundamental rights” and overall equality.  The United States went to war over the issue of federalism, not slavery as many purport, and out of the Civil War came three very important Constitutional amendments known as the Civil War amendments – among them, the Fourteenth.

Many believe that the federal government has overstepped its bounds in the states.  Typically, marriage is regulated by individual states.  The only way in which states can justify denying the right to marry someone of the same-sex is to deny that same right to heterosexual couples as well.  This radical idea is being proposed in Oklahoma after their same-sex marriage ban was struck down.  Their state legislature is thinking of getting rid of marriage all together as an effort to deny same-sex couples the right to marriage and abide by Constitutional guidelines.

Some individuals are also concerned that the Virginia Attorney General decided not to defend the state’s constitutional ban on same-sex marriage.  Edward Whelan wrote in a recent issue of the Weekly Standard, “What Herring shares… is an elementary confusion about the duty of a state attorney general.  Under well-settled principles of the American adversary system, a lawyer is ethically obligated to represent his client’s legal position.”  He went on to assert that the attorney general is the highest legal authority in a state and the state is the attorney general’s client.  Furthermore, Whelan stated, “[Herring] instead posits that his own personal legal conclusions…about the federal Constitution – trump state law.”  Any state officer in Virginia, pursuant to Section 7 of the Virginia constitution affirms, “I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge all the duties incumbent upon me as …, according to the best of my ability (so help me God).”

Despite being the top legal authority, the attorney general takes an oath to above all, defend the United States Constitution.  Whelan maintains that it is the responsibility of the federal government to protect the United States Constitution and if individual state attorneys general begin to “decide” they disagree with state laws on Constitutional grounds “the rule of law may fall beyond repair.”

The issue of same-sex marriage is rapidly snowballing.  Other attorneys general have elected not to defend their state’s same-sex marriage ban, which points to a potential shift in legal rational.  While the issue of states’ rights is a valid argument, depriving rights afforded to others with no legally sound compelling interest except for a long standing tradition of “traditional marriage,” brings the United States back to the racially charged civil rights era.  Equality and fairness is one ideal Americans hold dear and there are Constitutional protections in place to ensure Americans are treated this way.  If states do not like or agree with these principles, they should follow suit with Oklahoma and get rid of marriage all together as this is the only Constitutionally acceptable way to deny same-sex couples marriage – deny it for everyone.