In July, the Federal Marriage Amendment (FMA) was, unsurprisingly, DOA.  But, advocates of traditional marriage should not be disappointed.  FMA is already in the Constitution.  The Ninth Amendment decrees, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and Amendment Ten orders, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  Two amendments granting each state the right to pass laws governing issues not specifically covered by the federal government.  In a society that truly respects the Bill of Rights, FMA should be redundant because the states should be able to decide.  Unfortunately, though, our society’s respect for the Bill of Rights and the Constitution is fading away.

Advocates of gay marriage insist that the Fourteenth Amendment protects the right to gay marriage.  It doesn’t.  It says, “No State shall make or enforce any law which shall… deny to any person within its jurisdiction the equal protection of the laws” [my emphasis].  The Fourteenth Amendment promises homosexual couples the legal protections granted to heterosexual couples in comparably monogamous, long-term relationships so that their constitutional rights are not infringed upon.  Marriage, for all of the debating, is just a word, and not even one found in the Constitution.

Essentially, the Ninth, Tenth, and Fourteenth Amendment leave to the states the right to define marriage in whatever way the citizens of the state decide, which is why FMA should be as redundant as the Equal Rights Amendment.

Our culture today, however, differs from the one that enacted the Ninth, Tenth, and Fourteenth Amendments.  Despite the Founders’ plan of three separate-but-equal branches of government carefully balancing each other, that is simply no longer the case.  For the past thirty-plus years, the judicial branch of our government has slowly become more powerful by interpreting the Constitution increasingly broadly, even at the expense of the actual words and intent.  Historically, there have always been constructionist and revisionist trends in the Court, but recently the Court’s revisionist trend seem to have little interest in abating.

In November, 2003, albeit briefly, the judicial branch actually shrunk government from three separate branches to two.  The Massachusetts Supreme Court ruled that the legislators in the State House had to pass a bill permitting gay marriage.  In the 4-3 ruling, Chief Justice Marshall decreed that the Massachusetts legislature had six months to create the law because anything short of that violated the Constitution.  For a moment, Marshall was both head justice and the entire legislature in saying it was against the law to not pass a law, if that even makes sense.

This judicial tyranny is not limited to Massachusetts nor to the issue of gay marriage.  In states across the country courts are demanding that the legislatures pass laws.  New Hampshire’s Supreme Court, for instance, ruled that the previous education funding models were unconstitutional, rewrote the education funding laws to their liking, and then told the legislature to pass their plan.
 
Such a judiciary usurps the rights of the people, but those who care enough to complain are told they have no choice because the Constitution gives the courts the authority to interpret for the good of the people.  Nowhere in Article III does the Constitution tell the Court it can interpret the law, only that they rule on a law’s constitutionality.

The Constitution protects the rights of states to define marriage as they see fit so long as the legal protections are not denied.  This may seem like a subtle difference, but in our divided society – a society divided in so small part thanks to the judicial jihad being led by fringe groups on both sides of the political divide – it may the necessary compromise to bind it back together.

The gay lobby insists they want to be married for the legal protections that are granted to married couples and they should not be denied that.  But, they shouldn’t be allowed to hijack the judiciary to force their views onto the rest of society, especially since society is already naturally inclined to grant legal protections to two people who love each other and say they always will.

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