What the Constitution Says About Gay Marriage. 23 November 2014.

I live in Arkansas, and we are, as of this writing, under an unconstitutional same sex marriage ban. A lot of people say, when this ban is challenged, "But we voted for it, how can you throw out something we voted for?". The answer is simple, because the ban is unconstitutional. Let's examine what the Constitution says, and how we, as Christians, are to respond to the laws of the land we live in.

Article VI, Section 2
The Supremacy Clause

First of all, state laws are subject to the Constitution via Article VI, Section 2. The Supremacy Clause of the US Constitution states “The Constitution…shall be the supreme law of the land; and the judges in every state shall be bound thereby.” Any state law that is passed that violates the Constitution is considered to be null, void and invalid. It doesn’t matter if a state has a vote and passes a law - if the law is in clear violation of the Constitution - that law is invalid. But, how do state gay marriage bans violate the Constitution?

The First Amendment
The Establishment Clause

It is important to recognize that Separation of Church and State is not in the Constitution - it would be dishonest to say it is. However, this doesn’t mean it’s an invalid concept. The First Amendment’s Establishment Clause states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This means two things. First, religious beliefs are free of government control. Second, this means the government does not, can not and will not involve itself with enforcing, mandating or promoting religious doctrines. Though not explicitly states, this is where Separation of Church and State comes from - it is a principal set forth in the First Amendment.

The Fifth Amendment
Due Process Clause

The 5th Amendment states, “No person shall… be deprived of life, liberty, or property without due process of law.” If we look at Cleveland Board of Education v LaFleur it shows that same sex marriage is protected by the Constitution’s commitments to liberty and equality. The case states the “freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause.”

The Fourteenth Amendment 
Equal Protection Clause 

The 14th Amendment, Section 1 states that “No state shall make or enforce any law which 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 with its jurisdiction the equal protection of the laws.” In Loving v Virginia, The 1967 Supreme Court confirmed that marriage is “one of the basic civil rights”, and that same sex marriages should receive the same protections given to interracial marriages by that ruling. The right to marry the person of one’s choosing is a crucial component of freedom and liberty.

Defense of Marriage Act
Repeal of Section 3

In case we’ve forgotten, DOMA (Defense of Marriage Act) stated in Section 3 that “marriage means only a legal union between one man and one woman”.  This was struck down because it was found to be unconstitutional under the Due Process Clause of the Fifth Amendment. Justice Anthony Kennedy stated that same sex couple’s “moral and sexual choices the Constitution protects, and whose relationship the state has sought to dignify.”

For those who say “But America was founded as a Christian nation!”, it’s important to note that it isn’t a true statement. In fact, if you read the Treaty of Tripoli, John Adams stated that the “Government of the United States of America is not, in any sense, founded on the Christian religion”. First, the text of the Constitution does not state that the United States is a Christian nation, nor does it contain references to God, Jesus or Christianity. The First Amendment bans laws “respecting an establishment of religion” and protects “free exercise”. The beliefs of the Founding Fathers would not have allowed them to support the Christian nation concept. James Madison and Thomas Jefferson were very vocal on their beliefs opposing church and state mixing. They were very familiar with how Christian governments in Europe opposed human freedom. The major Founding Fathers were not Conservative Christians and would not have supported this idea. They were Deists, who believed in God but didn’t see his activity in the affairs of man. After the Constitution was ratified, ministers attacked it because it did not include any references to Christianity. Also, during the post Civil War era, pastors tried to amend the Constitution to include references to Christianity. However the House Judiciary Committee voted against it in 1874 and said that it was dangerous to put “anything into the constitution or frame of government which might be construed to be a reference to any religious creed or doctrine.” Our government is, and has been, neutral on religion - these matters are up to individuals, not the government.  As a Christian, I accept this - because my faith is just that, my faith.  I realize that my faith has no bearing on the decisions of the government and laws that I am subject to.

How are Christians to Respond?

Romans 13:1 states, “Everyone must submit himself to the governing authorities, for there is no authority except that which God has established.” We are to obey the government and obey and respect the rules and laws of the government. If we do not do so, we are showing disrespect to God. Paul was under Nero who was one of the most evil emperors of all time, but Paul still recognized and was subject to the government’s rules and laws.

Marriage is a civil institution, not a religious one. Everyone has their own ideas of what marriage is, but at it’s core - it is a civil institution. People do not have to be married in a church, they can be married by a JP - showing that marriage is not simply a religious privilege, but a civil right. Marriage is not dependent upon a religion for it’s existence. It is very simple - marriage is not a decision for states to make. The right to equality does not vanish when you cross state lines. Article Vi, Section 2 says that states can not pass law that violate the Constitution or federal laws. The First Amendment forbids laws from being passed based on religion. The Due Process Clause protects fundamental rights and the Equal Protection Clause prohibits discrimination. The Constitution does not condone or forbid acts of homosexuality. It does not discuss issues of morality. All court rulings on gay rights, gay marriage or any sexuality matters are acting against the Constitution and are acting illegally. 

References:

"Gay Marriage ProCon.org." ProConorg Headlines. Web. .

"5 Reasons America Is Not -- And Has Never Been -- a Christian Nation." Alternet. Web. .

"Celebrating Loving: The Fourteenth Amendment and the Right to Marry | Constitutional Accountability Center." TheUSConstitution.org. Web. .

"Show Me Where the Constitution Says Gay Marriage Is a Right." Infowars. Web. .

"What Does the Supremacy Clause Mean?" Constitution Mythbuster. Web. .

"Why Obama’s Words Didn’t Go Far Enough." Slate Magazine. Web. .

Bedi, Sonu. "Not About Gay Rights: Same Sex Marriage and the Separation of Church and State." The Huffington Post. TheHuffingtonPost.com, 26 Mar. 2013. Web. .

"Little-Known U.S. Document Signed by President Adams Proclaims America's Government Is Secular." Little-Known U.S. Document Proclaims America's Government Is Secular. Web. .

"Separation of Church and State: Is It Actually in the Constitution?" About. Web. .

"The Supreme Court Struck down Part of DOMA. Here’s What You Need to Know." Washington Post. The Washington Post. Web.