Never in recent memory can I recall such an event in politics that has the people as excited as the Hollingsworth v. Perry case.
To see images of crowds of people marching in Washington protesting and debating on both sides of the argument, truly captures what it means to be part of the political process. In fact, I wish people would act like this more often with other issues.
While I respect both sides involved in this movement, and do not deny they have the right to petition the government, both arguments, the one in favor of nationalizing gay marriage via a constitutional amendment and the one that seeks the Defense of Marriage Act to be upheld, are both unconstitutional. In fact, the current DOMA is technically unconstitutional as currently written.
This unconstitutionality is caused by the 10th Amendment of the Bill of Rights: all and any powers not specifically given to the federal government by the Constitution, nor prohibited to the states, then such powers and coinciding laws are to be decided by the state governments.
Now the only real powers of the federal government outlined in the Constitution are the powers to create an army, print money, regulate interstate commerce, conduct foreign affairs and create new laws to enforce, but not change, the Constitution. Now, where does marriage fall underneath that?
Nowhere, because marriage is both a religious and social institution that the federal government has no real authority over. The Founding Fathers did not want to create another society like England where the government had control over every little decision. Such a system would not work for a country as large as the U.S., and such a system would be at the expense of the people.
So the decision of what constitutes as a legal marriage falls to the state’s decision and the government cannot make gay marriage legal or illegal.
This same standard applies to the current DOMA, which violates not only the 10th Amendment by defining what marriage is but also the First Amendment, the separation of church and state. By saying that marriage is between man and woman, it gives legal support to religious beliefs and institutions that share this definition and discriminates against other belief systems that may have a different view on marriage. Not only does this mean that the DOMA is illegal, but it also means any act to define marriage on the federal level would violate the First Amendment, including legalizing gay marriage as it violates other religions definitions of marriage.
Now, there are two real decisions that can be made about the whole issue of gay marriage and marriage in general.
Two options that I see to address this issue of marriage are to either leave the law as it is, and let the states decide; or to do away with government involvement in marriage, both state and national, completely, and let marriage be an entirely personal, religious and social institution.
The state could only administer a civil union to couples, be they heterosexual or homosexual, which serves as a contract to cover all the legal aspects that come with a legal marriage but cannot legally recognize a marriage.
But, if the couple wishes to be married as husband and wife, or whatever they want, they may take any path they choose to be it under the Catholic Church, a Protestant church that recognizes same sex-marriage, or however they wish.
Nick Chavez is an undeclared freshman and a contributing writer for the Daily 49er.
