Gay Marriage: Rights Vs. Government Power







Currently, in Obergefall v Hodges, the Supreme Court is cogitating whether the right to gay marriage can be found in the Constitution through a host of arguments that involve “Equal Protection”, “Due Process” the Ninth Amendment, etc.

Obergefall is only one in a line of cases searching for individual rights not explicitly enumerated in the Constitution.  Griswold v Connecticut was about the use of contraceptives and privacy.  Loving v Virginia was about interracial marriage and, of course, Roe v Wade was about abortion.

The heavy, heavy burden is always on the proponents of the unlisted rights to find them in the Constitution. Reading those briefs and opinions is mind numbing.

The legal presumption is that laws are Constitutional until some court says otherwise.

I believe this is based on upside down thinking about our Constitution.

Instead of viewing the basic question as proving that the Constitution grants us the right to do or not something; how about viewing the basic question as whether the Constitution grants government the power to prevent or compel us to do something.

The government should have to justify their laws. We should not have to justify our freedom and liberty.

Shift the burden to governments to prove that the Constitution lets them regulate what we read, eat, smoke or who, how, where and when we have sex, etc., etc., etc.

This kind of reasoning is not just wishful thinking.

The Ninth Amendment states that: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Don’t make me prove that gay marriage and privacy are unnamed Constitutional rights.  Make the government prove that the right gay marriage and privacy are denied by the Constitution.

Where does this notion come from?  How about the fifty-five most important words ever written?  I’m talking about the second paragraph of the Declaration of Independence:

 “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”


Only people have “rights” and they are “unalienable”.  Governments have “powers” that can come and go.  Even the expression “states rights” is a misnomer.  The Tenth Amendment talks about state’s “powers” not “rights”.

And if, as The Declaration of Independence says, these rights are “self evident”, why should we have the burden of proving their existence?

(While the Courts have held that The Declaration of Independence has no force of law, I don’t think the American people would agree.)

Rights trump powers.  Governments asserting power over “life, liberty and the pursuit of happiness” should have the obligation to Constitutionally justify their laws by compelling evidence.  The conservatives on the Supreme Court have no problem with that analysis when it comes to attacking Obamacare, restrictions on corporate campaign contributions and environmental regulation, etc.

It’s time we extend that analysis to personal liberty and “the pursuit of happiness”.  Obergefall v Hodges and gay marriage is a good place to start.


(Sam Fields is a Plantation, Florida lawyer who has taught constitutional law.)


3 Responses to “Gay Marriage: Rights Vs. Government Power”

  1. Jeff Bray says:

    You offer very cogent, sound reasoning, Sam. I just worry that many courts will be too blind to see the simplicity and accuracy of what you argue.

  2. Chaz Stevens, Satan says:

    The current right-wing drive to harness the power of government to bring souls to Christ is dangerous and un-American.

    As no less conservative a figure than Sandra Day O’Connor wrote in 2005: “Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: why would we trade a system that has served us so well for one that has served others so poorly?”

  3. City Activist Robert Walsh says:

    #2 this heathen irritates me. I believe in life after death. I believe I will see my deceased parents again. And what if you are right, so what. I sleep like a baby at night. You are bad for society. At least w/ me residents that come to me @ least I give them hope and direction to helping them. What do you give them???. Hang in there people. I got your back. I have my eyes on the players(right behind you). As far as gay marriage be careful what you wish for. I am waiting for the day Bisexuals can marry Steve/Eve. Then I ‘ll get both their retirement checks(put a mickie in their coffee and I’m a widower(perfect).Here ‘s your coffee guys(who would rat on me, Molly.._)