On the Constitutionality of Proposition 8 and the Defense of Marriage Act

The following is a mock SCOTUS decision I wrote last semester for my Constitutional Law class.

NB: I am a philosophy student and this post does not accurately follow the letter of the law, current precedents, or the style of a real SCOTUS decision. I think philosophically and ethically, not legally. 


On the Constitutionality of Proposition 8 and the Defense of Marriage Act

Justice Ducham – Dissenting Opinion

Why this case should not be heard by the Supreme Court of the United States


I will not comment on the morality of homosexuality here – the citizens of the United States are a smart and diverse people.  The peaceful actions of individuals in the privacy of their own homes, such as, the religious beliefs they practice, the person someone loves, so long as they are not harming others or infringing upon the rights of others, should be respected and protected by the law.  While historically it is not the case that the government has permitted absolute freedom of association or respect the privacy of her citizens to live peaceful lives as each individual citizen deems fit and rational according to his nature, this respect and understanding of the proper role of government – which should not be the police state which is growing all too familiar – is essential to reestablishing and preserving liberty for the people.

I will, in this opinion, provide several philosophical reasons for why the constitutionality of the Defense of Marriage Act and California’s Proposition 8 Ballot Initiative should not be national legal issues.

Purpose of Law

The purpose of law is to prevent injustice from reigning; it is not to artificially equate or stabilize, or submit and mold unnecessary laws to please the will of a majority.  Unnecessary and arbitrary laws, such as laws regulating the social norms and moral standards of the people of the Unites States, weaken the laws necessary to the sustainability of our nation as we know it.  This Country did not come fully formed – it was built by individuals of resolute character.  These revolutionary thinkers, philosophers, and statesmen did not believe in laws or in a government with oppressive laws that teach citizens dependency upon the state to solve their problems and for survival.  The Constitution written by those immortal men, the United States Constitution which we still abide by today and which all politicians have sworn to defend, is not so much a blueprint for government as it is a charter for liberty; and when such a charter intended for the defense of the liberty and independence of each citizen has an eroded purpose so as to be used as a tool for changing the social standards and the social norms at the whim of each passing generation, the citizens of our Country have truly lost its purpose and brilliance.         

Role of the Supreme Court of the United States of America

The judicial power of the United States is the final of the three branches of the government detailed in the United States Constitution.  The literary structure of documents and laws had great significance in the eighteenth century, more so than present day.  The purpose of detailing the judiciary as the final branch of government is to define its position as the last line of defense between tyranny and democracy.  The Supreme Court was not intended to have a ‘proactive’ role carving out society.  Adding a barrier between the Court and the citizenry is a defense of impartiality, which is essential for justice.

Because the constitutionality of Congress’s Defense of Marriage Act (“DOMA”) and California’s Proposition 8 Ballot Initiative (“Prop 8”) are called into question, the Court has a duty to hear and determine the constitutionality of the legislation.  The Court will carry through such duties, but the disapproval of this Justice on the lower circuit courts and legislative branches for making national issues of personal and private lifestyle choices should be known.

The Fundamental Rights Argument
Fundamental rights are those rights which are “deeply rooted in this nation’s history and tradition.”  Rights not “deeply rooted in this nation’s history” and not “implicit in the concept of ordered liberty” also fail to achieve status as a fundamental right.  The Court has determined that marriage is a fundamental right.  Beyond this, it is the duty and place of the state governments to enact and uphold the fundamental right as they see fit.  41 of the 50 United States have state constitutions defining marriage further as between a man and a woman.  While the Full Faith and Credit Clause of Article IV of the United States Constitution requires the respect and recognition of the laws and practices of each state in another, President Clinton clarified when DOMA was passed that this clause does not require or force states to recognize marriage as any other union but one between a man and a woman. Yet Section 1738C of the Defense of Marriage Act reads:

“No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”

This perhaps can be seen as another failure of the legislature to focus on those laws which are essential to the survival and preservation of the republic, as well as an injustice to the liberty of the people.

The 10th Amendment

I wish to here take an overly simplistic approach, because sometimes it becomes necessary to think of complex issues in the simplest of terms so that a resolution may appear.  The word “marriage” quite literally appears in no article, no clause, and no amendment of the United States Constitution.  That one of the most important functions of government has become to keep up to date with the social trends is not only insulting to the brilliant design of our governmental system – which is designed to protect the liberty and freedom of the individual citizen – but is also a waste of valuable time and other resources.  The 10th Amendment to the United States Constitution reads, “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.”  As the Constitution, the supreme law of our land, does not give to the federal government the power to define the institution of marriage, this power is given to the states.  But more importantly, this power is also given to the people, and it is the people, not the state or the federal government who should determine the moral standards of a society.  It is also the responsibility of the people to protect and preserve their individual rights and freedoms by assuming the responsibilities given to them by the Constitution of the United States.


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