Thursday, August 19, 2010
Same-Sex “Marriage” Is Not a “Privilege or Immunity” under the Constitution
A federal United States judge recently ruled in striking down California’s ban on gay marriage that there is a previously-unknown federal right under the Due Process Clause of the Fourteenth Amendment to the United States Constitution to have one’s marriage to whomever one wants be recognized by the state.
In light of U.S. Supreme Court Justice Clarence Thomas' brilliant concurring opinion in McDonald v. Chicago, the right to keep and bear arms case, it is necessary to explore whether or not gay marriage is a right under the Privileges and Immunities Clause of the Fourteenth Amendment. “Privileges and immunities” is another way of saying “freedoms and rights.” See my July post, A Conservative Federalist Commentary on the Right to Keep and Bear Arms Ruling, in which I explain why this clause in the Amendment is controlling, not the Due Process Clause. The Privileges and Immunities Clause requires states to guarantee those pre-existing natural law rights endowed by our Creator that the states recognized under their own constitutions at the time of their ratification.
The institution of marriage has always been recognized by the States as between one man and one woman. Therefore, there is no right that requires a state to recognize any other relationship as a marriage, as it is neither a privilege nor immunity under a state constitution. Thus, the federal constitution does not require states to recognize a right to same-sex “marriage” or any other “marriage” between any individuals other than one man and one woman.