After the election on November fourth we have heard much about the new California constitutional amendment banning same-sex marriage, but this also passed in two other states, Florida and Arizona. This makes it so that only two states actually allow same-sex marriage, Massachusetts and Connecticut. Other states do provide for something that offers similar benefits as marriage, but because of the Defense of Marriage Act passed in 1996 which does not allow same-sex couples federal rights they can never have all of the same benefits given to marriage. This got me to thinking that these laws are clearly unconstitutional, I just needed to find the right passages which declare as such. Of course, there is nothing specific in the national Constitution declaring same-sex marriages legal, but I knew there was probably something that would include this issue. Sure enough, I found it rather quickly in the fourteenth amendment which says, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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." At first this seems to only define what a citizen is, but it does much more than that. it says that states cannot deny privileges to the citizens, and guarantees all citizens equal protection under the law. I think it seems quite clear that same-sex marriage bans violate this amendment by giving a privilege to one group of citizens while denying another group of citizens the same privilege. Even denying marriage while providing similar unions violates this because if you are not calling it marriage is it really equal? Saying you are in a civil union is not the same as saying you are married. Well, this really only applies to the states and the Defense of Marriage Act is a federal law, but it is also unconstitutional. Article IV section I of the Constitution says, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." This says that all states must honor the rights given to citizens in other states and the Defense of Marriage Act says they don't need to recognize marriage. Well, marriage falls into this article as a public judicial proceeding which means that even if a state doesn't allow same-sex marriages, they still need to recognize them from other states. I think it is quite clear that same-sex marriage bans are unconstitutional and is seems that many people for them recognize this fact as well. In 2006, the Federal Marriage Amendment to define marriage in the US Constitution being between one man and one woman failed to pass. The fact that this amendment was even voted on shows that opponents of same-sex marriage know the laws they want to pass are unconstitutional so that is where they want to put it.
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