Kim Davis, the county clerk from a rural Kentucky county, has reignited the arguments over same sex marriage. I will talk later about her demonstrably false claims that she shouldn't have to issue marriage licenses because of "religious liberty". Starting off I want to talk about a claim that the right wing keeps making, that the US Supreme Court created a new right to gay marriage in their ruling.
Many on the right argue that there is no right to same sex marriage, or marriage in general in the US Constitution an so it is a matter left up completely to the states. In a way they are correct. The US Constitution does not address marriage, gay or otherwise, and the Supreme Court can not make new laws. They use this information to try and say that the SCOTUS decision is invalid and some are saying that states, or individual clerks or judges, should not issue marriage licenses if they don't want to. Of course this is an argument without any merit at all.
While I agree that the US Constitution does not directly address marriage, it does address the way states deal with the laws on their books. It does this in one way in Article 6, Clause 2 of the Constitution, a passage known as the Supremacy Clause. This clause states that federal law is the supreme law of the land and that state law can not conflict with federal law or the US Constitution. If state law does fall into conflict with federal law then the Supreme Court can invalidate the state law as it first did in Ware v. Hylton in 1796. The Supremacy Clause is not some esoteric bit of legalese, it is a well recognized and firmly established part of US law. So all of those people who tell you that the Supreme Court can't over turn a state law, well they are 100%, completely, and totally full of shit.
Of course those people will respond by saying in this case the Supremacy Clause doesn't apply because nothing in the Constitution or federal law establishes a right for a same sex couple to get married, and they are kind of right while at the same time being totally wrong and ignorant of what the Supreme Court actually did.
The Supreme Court didn't say that the Constitution grants same sex couples the right to marry. Sorry, they did not do that no matter how much you want to believe that they did. Instead the Supreme Court looked that the facts and found that all 50 states allow and regulate civil marriage. They also found that all 50 states recognize marriages between qualified couples from other states and countries. So every state is in the marriage business. If you look at Section 1 of the 14th Amendment of the Constitution you will see a few words stating that all laws must be applied equally to everyone. This is known as the Equal Protection Clause. This prevents a state from saying that men can get drivers licenses but women can't. It says that a state isn't allowed to say that a particular ethnic group can't hold certain jobs. It says, in general, that if a state passes a law it has to apply to everyone. Guess what, a law stating that a man and woman can get married but that two men or two women can't get married is not applying the law equally to everyone. The Supreme Court didn't say that there is a constitutional right to same sex marriage, instead it said that we have a constitutional right to be treated the same under the law. This means that all laws defining marriage as between a man and a woman are in violation of the Constitution and were therefore over turned by the Supreme Court. It wasn't really about gay marriage, it was about fairness and equality.
I can already imagine that a conservative Christian would read what I said and bring up the fact that two 5 year olds can't get married and that states have the right to set limitations on and qualifications for marriage. This is of course, well, a stupid argument. You see those five year olds can get married, they just have to wait until they are older, which is something we can reasonably expect them to do. It is not, however, reasonable to expect one of the men in a gay couple to change his gender and so any law preventing them from marrying based solely on their gender would be in violation of the Equal Protection Clause.
There are some who still won't be happy with this and will say that federal law doesn't regulate marriage and therefore the Supreme Court should have kept their noses out of what is and always has been an issue for the states. Once again they would be wrong. In 1882 President Chester Arthur singed the Edmunds Act into law which made polygamy a felony, not just in the states that agreed with the law, but everywhere in the United States. The federal government said that marriage could only be legal when the marriage consisted of no more or no less than 2 people. It doesn't end there, in 1967 the Supreme Court heard Loving v. Virginia a case which was brought after the State of Virginia exiled a married couple from the state because the man was white and his wife was African American. This was also an equal protection case, and just like the decision discussed above the Court said that everyone had to be treated the same under state marriage laws, no matter what their race. The federal government can and has changed state marriage laws before, either through legislation or by the Supreme Court ruling that those laws violated the rights protected by the Constitution. Nothing here is odd, strange, illegal, or unconstitutional at all, it is exactly how our government is supposed to work.
What about religious liberty? you may ask. Well yeah, what about it? The Supreme Court is not going to issue a ruling that conflicts with the Constitution. This ruling had absolutely nothing to do with religious liberty because it in no way forces a church or a clergy member to take part in a same sex marriage (unless a clergy member is also a government employee or elected official involved with issuing marriage licenses). If someone works for the government in a position that involves dealing with marriages and they disagree with same sex marriage then they are free to resign, no one can force them to issue a marriage license they don't think they should because no one can force them to keep that job. In some states (less than half) there are anti discrimination laws which protect gays and lesbians, in those states a public business must serve the public unless someone is being disruptive or creating some other sort of nuisance. This means, in those states, if you own a bakery and don't want to bake a cake for a gay wedding because of your religious beliefs that you have got into the wrong kind of business. You see there is no such thing as a "Christian business", businesses are legal entities, not religious entities, and they exist to make a profit, not to save souls. If you are in a state that has laws protecting gays and lesbians from discrimination and you own a bakery that refuses to serve gay customers, well you aren't a religious martyr, you are a law breaker and you may very well suffer legal consequences. But hey, you decided to break the law so that is on you.
I hope this clears a few things up about marriage equality, because really, the issue isn't just marriage, it is also equality.
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